It is never a bad time to think about estate planning; however, in the midst of COVID-19, also known as the Coronavirus, many individuals have questions regarding the various estate planning documents and what they may need. The following is a very brief overview of some of the various documents; however, this is not legal advice, and you should always consult qualified counsel before taking any action.
A. Last Will and Testament
A will is a legal document that details how you want your property and affairs to be handled upon your death. For a will to be valid, the individual, called a testator or testatrix, must be over 18 years old, of sound mind, and the testator or testatrix must sign the will in front of two witnesses, and those two witnesses must also sign the will in front of each other. While the two witnesses need not be disinterested witnesses, any interested witness is limited to what he/she can take under the will to that which he/she would have received had the testator died without a will. Accordingly, it is recommended that the two witnesses be disinterested to avoid unintended consequences.
Tennessee also recognizes what are called holographic wills, which is a will done in your own handwriting. It is important to note that you cannot type your will and then sign it. Tennessee law requires that the “material provisions” in such a will be handwritten; therefore, it is best to handwrite the entire document.
Tennessee also recognizes nuncupative wills (also sometimes called “deathbed wills”). Nuncupative wills may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if the testator died as a result of the impending peril. In order for a nuncupative will to be valid, it must be: (1) declared to be the testator’s will by the testator before two (2) disinterested witnesses; (2) reduced to writing by or under the direction of one (1) of the witnesses within thirty (30) days after such declaration; and (3) submitted for probate within six (6) months after the death of the testator. The nuncupative will may dispose of personal property only and to an aggregate value not exceeding one thousand dollars ($1,000), except that in the case of persons in active military, air or naval service in time of war the aggregate amount may be ten thousand dollars ($10,000). A nuncupative will neither revokes nor changes an existing written will. With the obvious limitations of a nuncupative will, it is certainly not the best choice unless it is the only choice available.
Certain assets under Tennessee law pass outside of Probate, meaning they will pass to a designated beneficiary without the necessity of having a will. Such assets include retirement accounts such as IRAs or 401ks, life insurance proceeds, property held in a living trust, funds in payable-on-death (POD) accounts, and securities registered in transfer-on-death (TOD) form. For such accounts, you can name a beneficiary, which is a person who you wish to receive such assets upon your death.
B. Living Will
A living will is a document that allows you to specify your decisions related to end of life care. This includes such things like whether or not you wish to be kept alive by artificial means and whether you wish to donate your organs. To make a living will, it must be in writing and signed by the individual in front of a notary public or signed in front of two witnesses without a notary public. If it is signed in front of two witnesses without a notary public, at least one of the witnesses must be disinterested. A disinterested witness, in this case, is a witness who is not related to the principal by blood, marriage, or adoption and would not be entitled to any portion of the estate of the principal upon the death of the principal under any will or codicil made by the principal existing at the time of execution of the declaration or by operation of law then existing.
C. Power of Attorney
A Power of Attorney is a way to grant another individual the power to make decisions for you. A Health Care Power of Attorney is a document that allows you to designate a person you wish to make medical and end of life decisions for you. A General Durable Power of Attorney is a document that allows you to grant another individual the power to make financial decisions for you. This would include such things like writing checks, selling or acquiring real property, managing bank accounts and insurance, etc. To be effective, a power of attorney must be signed by the individual in front of a notary or in front of two witnesses without a notary. If it is signed in front of two witnesses without a notary, at least one of those witnesses must be disinterested, meaning, in this case, that the witness is not related to the principal by blood, marriage, or adoption and would not be entitled to any portion of the estate of the principal upon the death of the principal under any will or codicil made by the principal existing at the time of execution of the durable power of attorney for health care or by operation of law then existing.
If you have a question about any of these documents, we encourage you to seek legal advice.
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