Can I Write My Own Will? Is a Handwritten Will Valid?

handwritten will, holographic will, probate lawyer

In some cases, a handwritten Will can be considered valid and admitted to Probate Court.  Under Tennessee law, a handwritten Will is called a “Holographic Will.”  It is not necessary that the document be witnessed, but all the material provisions and the signature must be in the Testator’s handwriting.

What does “Testator” Mean?

The testator is the person who is making the Will.

How Do You Prove a Valid Handwritten Will?

The Testator’s handwriting must be proven by 2 witnesses.  Before petitioning the Probate Judge to admit the document to Probate Court as a valid Last Will and Testament, the Executor will likely have to find 2 people who can testify that the material provisions and signature are in fact written in the Testator’s handwriting.

Why We Don’t Advise Handwritten Wills

While writing your own Will seems like a simple solution to making sure your assets go where you want them to go after your death, there are many pitfalls. For example:

  • You may mistakenly believe that the disposition of certain assets will be governed by the terms of your handwritten Will.
  • A handwritten document is more easily lost.
  • A handwritten Will requires additional proof to be admitted to Probate Court.
  • When you handwrite a Will, you are likely to amend or rewrite that Will in the future.  You are more likely to leave multiple handwritten documents that contain conflicting provisions.
  • Pertinent provisions may be left out of a handwritten Will, including provisions relating to the disposition of assets or provisions that may ease the burden of administrating the Estate.
  • Many handwritten Wills are not properly executed and are unable to be admitted to Probate Court.

A Will drafted by a Probate Lawyer is likely to more clearly convey your wishes so that it can be correctly interpreted by your Executor and the Probate Court Judge after your death.

Need a Will? Call a Probate Lawyer.

If you would like to speak with a Probate Lawyer about a Will or about how to make sure your wishes are carried out after your death, give us a call at 901-372-5003 or email us here. With offices in Memphis and Nashville, you can also visit our website to learn more about our attorneys and the work that we do for our clients.

 

What does my spouse get when I die? Ask the Probate Lawyer.

will for spouse, ask probate lawyerMany people believe that if you die without a will, that everything passes to your surviving spouse. Did you know that is not necessarily true? Read on to learn more from a probate lawyer about what a surviving spouse is entitled to in Tennessee.

If you die WITHOUT a Will

If you die without a Will, the distribution of your assets will be governed by the Tennessee laws of intestate succession.  If you die “intestate,” it means that you die without leaving a Will. This is what will happen if you die without a Will:

  • If you have a surviving spouse, he or she will receive your entire Estate if you had no descendants at the time of your death.
  • If you are survived by descendants, your spouse is entitled to either (a) one-third (1/3) of your estate, or (b) a child’s share, whichever is greater.

If you die WITH a Will

Even if you die with a Will that does not include your spouse, he or she will still be entitled to a portion of your assets. Your surviving spouse may take what it called an “Elective Share” against your Estate, which is based on the length of the marriage.  There is a sliding scale, but the maximum Elective Share a surviving spouse can take is forty percent (40%) of the net Estate if the couple was married nine (9) years or more.

You Cannot Disinherit Your Spouse in Tennessee

Whether you die with or without a Will, in all but a few rare cases, your spouse will be entitled to a portion of your Estate. Generally, you must be legally divorced from your spouse in order to prevent that person from receiving a share of your Estate.

Other Allowances for Spouses

Other allowances for surviving spouses (which may also apply to minor children) include a $50,000 exemption for personal property, a reasonable allowance for a year’s worth of support according to the previous standard of living, and either the right to the homestead or $5,000 from the proceeds of the sale of the home.  In some cases, a surviving spouse might be entitled to certain accounts of less than $10,000 or wages due to the decedent if no formal probate estate is opened.

Need a Will? Need a Probate Lawyer? 

Please contact Wiseman Bray PLLC at 901-372-5003 or email us here if you have questions about leaving a Will, Estate Planning, or Probate issues.  We have a team of lawyers ready to help you.

 

Legal Problem Solving: Does Your Lawyer Merely Work the Problem? Or Solve the Problem?

legal problem solvingLet’s discuss legal problem solving. Does your lawyer merely work the problem, or solve the problem? There’s a difference, you know.

  • A cookie-cutter response vs. a creative solution
  • Reaction vs. a plan of action
  • “Winning” the lawsuit vs. avoiding the lawsuit
  • Churning legal fees vs. finding a cost-effective solution up front

I saw a blog post once detailing a masterful stroke of legal genius by the lawyers for Jack Daniels, and wanted to share it. It’s a prime example of the type of culture and approach we cultivate at Wiseman Bray PLLC– solving the problem vs. merely working the problem.

Legal Problem Solving at Wiseman Bray PLLC

Our clients don’t just want legal answers.  They want solutions.  So at every stage our goal is to focus on the following question to the client:

“What do you ultimately want to accomplish?”

Sometimes that means we have to act not just as legal advisors, but also legal counselors – asking questions, raising issues the client may not have considered, and then sometimes even gently prodding and steering clients to think beyond their immediate short-term emotions and goals.

In virtually every case, our clients appreciate our focus on long-term solutions.  That might mean, for example, our client accepting a short-term loss in exchange for saving a relationship with a customer and securing new business, renegotiating as opposed to litigating a contract, and realizing that the cost of vindication might sometimes outweigh the perceived benefits. Many clients have even remarked how unusual it is that a lawyer would suggest an option that they weren’t even aware of, and that would generate less in billed fees for the lawyer.

But, then again, that’s how we internally answer the very same question we put to our clients:

“What do WE ultimately want to accomplish?”

We want to uniquely serve the best interests of our clients so that they ultimately come back.  And refer their peers, colleagues, friends, and family.

And they do.  And we’re confident you will, too.

 

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

(901) 383-6599 Fax

www.WisemanBray.com

 

Probate Process: How long does it take?

probate process, how long does it takeHow long does the probate process take? I often pose this question at seminars and get a variety of answers. Two of my favorite answers are “years” and “forever.” While neither answer is correct, it typically indicates that someone in the room (or perhaps a friend or neighbor) has had a bad experience with Probate Court at some point. In Tennessee, a Probate Estate must remain open for a minimum of four (4) months from the time of first publication. This period is designed to give creditors time to come forward and assert a claim against the Estate.  An Estate must remain open the full four (4) months regardless of whether the deceased person had any debts.

Time Starts to Run on the Date of “First Publication”

When an estate is opened in Shelby County Probate Court, the clerk’s office notifies The Daily News, and they publish a public notice regarding the opening of the Estate, typically within a week of the opening of the Estate. This first publication marks the start of the four (4) months, and the Estate cannot be closed until 4 months after the date of first publication.

However, bear in mind that this is a minimum amount of time, and there is no guarantee that the Estate can be closed at the end of the 4 months. I frequently tell clients that 6-9 months is a more realistic average for a straightforward Probate Process. The “first accounting” is not due until 15 months from the opening of the Estate, so if the Estate is closed out within that 15 month period, you are still doing pretty well.

Why does the Probate Process take so long?

So what makes the probate process last beyond the 4 months? A number of factors often contribute to how long a Probate Estate is open. Preliminarily, there are 8-10 steps that must be completed for every Probate Estate regardless of the size of the Estate, the cooperation of the Beneficiaries, or the debts of the deceased person. If these steps have not been completed or if the proper letter has not been received from Tenncare of the Tennessee Department of Revenue, the Estate cannot be closed. If there are minor Beneficiaries involved and the Will does not contain instructions on holding those funds in trust, we often have to seek court guidance and have additional hearings regarding handling these funds. Likewise, if Beneficiaries are fighting, the Probate Process will often take significantly longer than the 4 month minimum. If the decedent left a number of debts, and creditors have filed claims against the Estate, each valid claim must be paid in full or settled before the Estate can be closed. If the decedent had property in more than one state, the process can take much longer. These are just a few of the factors that can contribute to a lengthier Probate Process.

Every Probate Case is Different

Although the correct answer is rarely, if ever, “years” and definitely not “forever,” the Probate Process can last much longer than Beneficiaries are expecting. The Probate Estate that is open for years is not the norm, but most attorneys who do a lot of Probate work will typically have at least a couple of cases that drag on for one reason or another. In many cases, where everything is straightforward, 6 months should be a reasonable estimation of how long it takes. Unfortunately, we often can’t predict when we open an Estate the circumstances that may arise, so while it may seem simple on the front end, it could also turn out to be more complex. If we know some of the complicating circumstances in the planning stages, we can often  incorporate strategies to avoid some of the Probate pitfalls.

Need help with Probate Court?

Please call us at 901-372-5003. We know you have a lot on your mind and the thought of going to court can be overwhelming. We are experienced probate lawyers and we can guide you through the Probate Process.

How to Avoid Probate

Did you know that you can eliminate the Probate Process altogether through revocable living trust planning? If you would like to learn more about Probate or about planning to avoid probate, please call us. We can guide you through an Estate Plan designed specifically for you and your family.

probate process lawyer in memphis

Blog Post by: Probate Lawyer Lindsay Jones

Wiseman Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018