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March 23, 2016 In Estate Planning, General

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

handwritten will, holographic will, probate lawyerIn 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 today. 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.

March 9, 2016 In Estate Planning, General

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

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 Patterson Bray 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.

 

named estate representative of will
February 25, 2016 In Estate Planning

Ask the Probate Lawyer: What to do if you’re named as Executor in a Will.

Ask the Probate Lawyer: What to do if you’re named as Executor in a Will.

Probate Lawyer for Personal Representative of Estate

If you’ve been designated to serve as the Personal Representative (sometimes also called Executor or Executrix) in a Will, you will need to hire a Probate Lawyer to handle the Estate in Probate Court. Don’t worry: the attorney fees charged by the Probate Lawyer will typically come out of the funds of the Estate, not from your own personal assets.

Once you’ve hired a Probate Lawyer, you’ll meet with the attorney and begin to gather all pertinent information. The attorney will prepare and file documents to petition the Probate Court to admit the deceased person’s Will for probate administration.

Can’t I just handle the business of the Estate Myself?

No.  In Tennessee, the administration of an Estate must be done with the assistance of a licensed  attorney. Many people mistakenly believe that if you are named as the Personal Representative in a Will, then you only need a copy of the Will and an I.D. to conduct business on behalf of the deceased person or the Estate, but this is not correct. To legally transact business on behalf of the Estate, you must be officially appointed by the Probate Court and present the proper authorization.

Do I have to go to Probate Court?

Yes, if the deceased person had assets or accounts that do not have a joint owner or a beneficiary named. You will have to go to Probate Court with the attorney to prove the Will and to be officially appointed by the Probate Judge as the Personal Representative of the Estate.  At this court appearance, the attorney will address the judge and you will be asked certain questions about the deceased person and the Will.  The Probate Judge will then review the Will and the proof and decide whether or not to admit the Will for probate. If the Will is admitted, you, as the Personal Representative, will then be sworn in as a fiduciary, and you will be issued “Letters Testamentary” or “Letters of Administration,” which will allow you to legally conduct business on behalf of the Estate.

Required Steps in Probate Administration

Once the Estate has been opened and you’ve been officially appointed to serve, you will complete the following required steps with the help of your Probate Lawyer:

(1)   Establish a separate bank account for the Estate;

(2)   Give notice to beneficiaries of the opening of the Estate;

(3)   Give notice to creditors and TennCare of the opening of the estate;

(4)   File affidavits regarding notice to beneficiaries and TennCare;

(5)   File annual accountings and inventories; and

(6)   Collect the deceased person’s assets and distribute them amongst the beneficiaries. 

Do I Get Paid for the Time and Expenses I Incur While Serving as a Personal Representative? 

Yes. A Personal Representative is entitled to reimbursement of expenses that he or she personally incurs in administering the Estate. A Personal Representative is entitled to a reasonable fee at the conclusion of the administration of the estate. However, the position is truly more of a responsibility than a profitable endeavor. There is a significant amount of work for the Personal Representative to do. The amount of the fee depends on a number of factors, which the Probate Lawyer will discuss with you. 

How long does the Probate Process take?

An Estate must remain open for a minimum of 4 months to allow creditors time to file any claims.  On average, it has been our experience that 6-9 months is a reasonable estimate of the time it takes to conclude the administration of an Estate if everything is straightforward.  In some cases, it can take 12-15 months.  If an Estate takes longer than 15 months to administer, it generally means that there has been a problem that has arisen during the process, such as a tax problem, a will contest, or even the presentation of an unknown heir.

Let us be your Probate Lawyer. We can help. 

Call us at 901-372-5003 if you need help. If you hire us, we’ll walk you through the entire process and do our best to make your job as Personal Representative as easy for you as possible. We handle probate cases throughout Tennessee and Mississippi, including in Shelby County, Memphis, Bartlett, Arlington, Germantown, and Cordova.

 

January 29, 2016 In Estate Planning

Estate Planning 101: Power of Attorney and Living Will

Estate Planning 101: Power of Attorney and Living Will

living will power of attorney memphis estate planning lawyerA common question we receive from our estate planning clients is:  “What is the difference between a Health Care Power of Attorney and a Living Will?” Some people even incorrectly believe that a Living Will is the same thing as a Health Care Power of Attorney. While the two documents relate to your health care decisions, they are not the same. Both are important when planning for disability and death.

What is a Power of Attorney?

A Power of Attorney is a basic estate planning tool that is useful for ensuring that your financial and health care decisions can be made in the event of your incapacity.

Financial Power of Attorney

With a Financial Power of Attorney, you appoint an agent who is authorized to act on your behalf with regard to financial tasks and decisions (such as the payment of your bills and living expenses) in the event that you become unable to effectively manage your own property or financial affairs.  This authority may be granted at the time you execute the document or you can elect to make it effective only in the event of your incapacity.

Health Care Power of Attorney

With a Health Care Power of Attorney, you designate an Agent to make medical decisions for you if you cannot express your wishes or make the decisions yourself.  In addition, your Health Care Power of Attorney authorizes your Agent to obtain copies of your medical records

What is a Living Will?

In conjunction with your Health Care Power of Attorney, a Living Will serves to inform your doctors and your Agents that you do not want extraordinary medical measures taken, especially those that would cause you pain or discomfort, if those measures would only prolong the dying process.  Although the  Agent you named in your Health Care Power of Attorney will ultimately make this decision, your Living Will provides guidance to your named Agent concerning your wishes.  Any person can deliver your Living Will to your doctors if the Agent you named in your Health Care Power of Attorney is unavailable to make health care decisions for you.

What if I change my mind?

You can revoke (i.e., cancel) your Financial or Health Care Power of Attorney  and Living Will documents at any time while you have capacity.

Need help with a Power of Attorney or Living Will?

Fortunately, Tennessee law governs what type of language should be included in these documents. The language requirements provide uniformity so that financial institutions and hospitals are familiar with the documents and can act accordingly.

If you have additional questions about a power of attorney or living will, or if you are interested in developing an estate plan, please call us at 901-372-5003 or   email us here.    We are experienced estate planners and regularly practice in Probate Court.

We assist personal injury, estate planning, business litigation, and business organization clients in the greater Memphis and Nashville areas. Cities covered include Arlington, Bartlett, Collierville, Cordova, Eads, Germantown, Lakeland, Ashland City, Belmont, Hillsboro, Brentwood, Belle Meade, Forest Hills, Franklin, Greenhill, Hendersonville, Nolensville, Nolan’s Park, Oak Hill, and surrounding towns and cities.

August 13, 2012 In Business Litigation, Civil Litigation, Estate Planning, General

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

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 Patterson Bray– solving the problem vs. merely working the problem.

Legal Problem Solving at Patterson Bray

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.

November 15, 2011 In Estate Planning

Who are my Beneficiaries? A critical question in planning for the future.

beneficiary designations estate planning lawyer

How does Property Pass to Beneficiaries?

Do you know who your beneficiaries are? When we ask clients this question, their first response is often quick and affirmative. However, we frequently discover through the estate planning process that the beneficiaries listed on our clients’ life insurance policies and retirement accounts are not who they think they are, nor are they the intended recipients of the property.

One of the most common misconceptions we see is how property passes at someone’s death.  Accounts that have beneficiary designations  pass to the beneficiary or beneficiaries named on the beneficiary designation form for that account regardless of what your will or trust says.  So, for example, if my Will says that everything passes to my spouse at my death, but my beneficiary form on my life insurance names my children as beneficiaries, my life insurance proceeds  pass to my children and not to my spouse. Here are some examples of accounts that typically designate beneficiaries:

  • life insurance
  • retirement accounts
  • transfer on death accounts (TOD)
  • payable on death accounts (POD)

Periodically Review Your Beneficiary Designations

The  Supreme Court case of Kennedy v. Plan Administrator of DuPont highlights the unintended results that may occur if your beneficiary designations are not reviewed periodically.  In this case, William Kennedy named his wife, Liv, as the sole beneficiary of his pension and retirement savings plans at DuPont.  When the couple later divorced, the Qualified Domestic Relations Order (QDRO) provided that Liv gave up her rights to receive any benefits from William’s pension and retirement plan.  Unfortunately, however, the court order was never submitted to DuPont and the beneficiary was never changed.  When William later died, DuPont paid out the plan benefits to his ex-wife, Liv.  Their daughter, Keri, was appointed as Executor of William’s Estate and filed suit claiming that the Estate should receive his retirement benefits because the QDRO clearly provided that Liv had waived any interest she might have in those benefits.  The Supreme Court upheld the ruling of the Circuit Court in saying that DuPont properly paid the benefits to Liv and that Liv was entitled to the pension and retirement funds even though the parties were not married at the time of William’s death and the QDRO clearly provided otherwise.

Moral of the Story

The moral to the story is that the beneficiary designation governs. Thus, it is very important that you know who is named on your various beneficiary forms so that your property goes to the beneficiary or beneficiaries that you intend for it to go to.  It is clear that William did not intend for his benefits to go to his ex-wife instead of his daughter, but the Supreme Court held that the beneficiary designation governed and that DuPont properly paid the benefits to Liv.

Tips for Beneficiary Designation Forms

Here are some tips and common problems to watch out for with your beneficiary designation forms:

1. Do you know where the form is? Generally, employers maintain records of the form, but if they cannot find their form when the time comes, the burden may be on you to produce a copy of the form.

2. Is the form up to date? Changes in your life may require you to review the forms periodically. If you have had a recent marriage, divorce, birth or death in your family, it is important to review your beneficiary designations. And remember, your Will does not change who the beneficiary is on an account or insurance policy.

3. Do you have a contingent beneficiary named? If the beneficiary you have named dies before you or is involved in a common accident with you, you may not know who the benefits will go to if you do not name a contingent or secondary beneficiary.

4. Have you named a minor as a beneficiary? Minors cannot legally hold title to property, including these benefits. If you have named a minor, a guardianship may have to be established and administered through the Probate Court concerning applicable funds.

Want to talk it over with an Estate Planning and Probate Lawyer?

If you have questions regarding your beneficiary designations and how they factor into your Estate Plan, please call us at 901-372-5003 or email us today. We’re ready to help you plan for the future.