TENNESSEE WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย Tennessee Code Ann., Title 32 (T.C.A. ยง32-1-101, et. seq.).
Trusts:ย Tennessee Code Ann., Title 35, Chapter 15 (T.C.A. ยง35-15-101, et. seq.).
Tennessee Will Requirements.
Any person who is at least 18 years old and of sound mind may create a valid will in Tennessee.ย Other than holographic and nuncupative wills (discussed below), Tennessee wills must bear the signatures of the testator and at least two witnesses.ย The witnesses must actually observe the testator sign the will or acknowledge that the signature is valid.ย Witnesses must sign the will in the presence of the testator and one another.
The only prerequisite to witness a will in Tennessee is that the individual must be generally competent to act as a witness.ย A Tennessee will is not invalidated if a witness has an interest in the will.ย However, devises to an interested witness are deemed void to the extent, in the aggregate, total devises to the interested witness exceed the share of the estate the witness would have received had the testator died intestate.ย The provision voiding devises to an interested witness is inapplicable if the will has at least two other disinterested witnesses.
Tennessee wills need not be notarized, but a will can be proved in probate through a notarized affidavit executed by the willโs witnesses.ย The affidavit can be executed prior to the testatorโs death at the testatorโs request or after death at the executorโs request.ย The affidavit serves in place of witness testimony before the probate court and must attest to the facts required to authenticate the will in probate.
A Tennessee will may incorporate by reference a written statement or list disposing of tangible personal property not otherwise addressed in the will.ย The list must be written in the testatorโs handwriting or signed by the testator and must identify the devised items and intended recipients with reasonable certainty.ย A list of personal property can be created before or after a will is executed and can be altered by the testator as long as the testator signs and dates any alterations.ย A list of personal property cannot be used to distribute cash, title instruments, securities, or items used in trade or business.
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
Amendment, Revision, and Revocation of Tennessee Wills.
Tennessee wills can be revoked in whole or in part by execution of a later codicil or will (not including a nuncupative will) that expressly revokes an earlier will or includes inconsistent terms.ย Similarly, a will can be revoked by subsequent execution of a document that expressly revokes the earlier will and satisfies legal formalities for execution of a valid will or holographic will. Revocation may also be accomplished through physical destruction of a will, such as by burning or tearing, with the intention of revoking the will.
If a testator is divorced after executing a will, any provisions in favor of the former spouse are deemed to have been revoked unless the will expressly provides otherwise.ย Property bequeathed to the former spouse is treated as if the former spouse predeceased the testator.ย Provisions deemed revoked due to divorce are revived if the testator later remarries the same spouse.ย A similar provision applies to distributions to former spouses set forth in a revocable trust.
If a child is born to a testator after execution of a willโand if the testatorโs will does not specifically provide for or disinherit the child and the testator did not during life make other inheritance arrangements for the childโthe child inherits the same share of the estate the child would have inherited had the testator died intestate.ย ย
In the event of both the testatorโs later marriage and the birth of a child to the testator, a Tennessee will is deemed to be revoked by operation of law.ย ย ย
Holographic and Oral Wills.
A document that does not fully satisfy the requirements for an attested Tennessee will may be nonetheless valid as a holographic will if it is signed by the testator and all pertinent provisions of the will are written in the testatorโs handwriting.ย The fact that the handwriting in a holographic will belongs to the testator must be established through testimony of two witnesses.
Tennessee recognizes oral (or โnuncupativeโ) wills under limited circumstances.ย The testator must make the statements while in imminent peril of death (including by sickness) from which the testator does not survive.ย The statements constituting an oral will must be heard by two disinterested witnesses, and the testator must declare that the oral statements are intended as the testatorโs last will.ย One of the two witnesses must reduce the oral willโs terms to writing within 30 days of the statements, and the oral will must be submitted for probate within six months of the testatorโs death.
Tennessee nuncupative wills are only effective for dispositions of personal propertyโand only property valued up to $1,000 (increased to $10,000 for active servicemembers during time of war).ย ย
Tennessee Trust Requirements.
Trusts in Tennessee are principally governed by the Tennessee Uniform Trust Code, enacted by the legislature at T.C.A. ยง35-15-101, et. seq.ย A Tennessee trustโs purpose must not violate the stateโs public policy and must be possible to achieve.ย In general, the purpose must be to benefit the interests of the trustโs beneficiaries, as those interests are defined under the trustโs terms. A Tennessee trust is invalid to the extent it was induced through fraud, duress, or undue influence.
Tennessee trusts can come into being through transfer of property by a grantor to a trustee (either during life or through a will or other testamentary instrument), a grantorโs declaration that property is owned as trustee, by exercising a power of appointment in favor of a trustee, or through a court order establishing the trust.ย
A valid trust is only created under Tennessee law if the settlor has adequate capacity to create the trust and expresses an intent to create a trust.ย For revocable trusts, the standard for capacity is the same as for wills.ย Tennessee trusts must also have a reasonably ascertainable beneficiary (subject to exceptions such as for charitable trusts and trusts for the care of animals).ย ย
The trustee of a Tennessee trust must have actual duties to perform, and a sole trustee cannot also be a trustโs sole beneficiary.ย Trustees who manage assets are governed by the โprudent investor rule,โ though the rule may be modified under the terms of the trust.ย ย
Though most trusts are evidenced by a written instrument setting forth the trustโs terms, Tennessee law recognizes oral trusts.ย However, the creation and terms of an oral trust must be established by clear and convincing evidence.
Tennessee trusts terminate upon revocation or expiration under the trustโs own terms, when there is no purpose of the trust remaining to be achieved, or when the trustโs purpose becomes unlawful or impossible.ย A trust may also be modified or terminated by a court upon the petition of interested parties.ย When a trust terminates, the trustโs remaining assets are distributed by the trustee as directed by the trustโs terms or otherwise consistently with the trustโs purposes.ย ย
The Estate Planners Tactical Guide
Essential Legal Protection for AchieversSpecial Considerations.
Estate Taxes:ย The Tennessee legislature repealed Tennesseeโs state-level estate tax effective in 2016.ย Large Tennessee estates may still qualify for the federal estate tax.ย Tennessee does not have an inheritance tax.
Simplified Probate:ย Tennessee law provides a streamlined probate process for โsmall estatesโ (defined as less than $50,000 in value, with no real estate).ย If an estate qualifies, a personal representative named in the decedentโs will or an heir can submit an affidavit requesting simplified probate.ย The affidavit states whether the decedent left a will, lists the decedentโs creditors, itemizes estate assets, and identifies heirs.ย If approved, the individual submitting the affidavit is authorized to collect estate property, pay creditor claims, and distribute estate assets to beneficiaries.
Muniment of Title:ย If a Tennessee estate includes real estate and the decedent left a valid will, the will can be probated for muniment of title.ย The shortened process allows the will to serve as evidence of title to real estate, allowing for transfer of real estate directly to a named beneficiary.ย The probate court need only confirm the willโs authenticity before authorizing transfer of title.ย Thus, the real estate avoids the longer ordinary probate process.
Non-Probate Transfers:ย Along with living trusts, Tennessee law offers multiple options for non-probate transfer of assets.ย Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death.ย Tennessee also recognizes tenancy by the entireties, another joint ownership form that includes a right of survivorship.ย Tenancy by the entireties can only be used for co-ownership by two spouses and only to own real estate.ย ย
POD (payable-on-death) and TOD (transfer-on-death) designations, which provide for automatic transfer to a beneficiary upon an ownerโs death, can be added to certain assets such as financial accounts, CDs, and securities.ย Similarly, beneficiary designations to retirement accounts and life insurance policies allow for non-probate transfer. ย TOD designations are not available in Tennessee for real estate deeds or motor vehicle titles.
Spousal Elective Shares: To protect against spousal disinheritance, Tennessee law allows a surviving spouse to claim a statutory elective share of a decedent spouseโs estate in lieu of the share provided under the decedentโs will or intestate succession rules.ย The elective share ranges from 10 to 40 percent of the decedentโs net estate, depending on how long the couple was married.ย The net estate includes the decedentโs interests in real estate and personal property that would pass by will or intestate successionโreduced for secured claims, final expenses, and certain allowances.ย The value of the elective share is reduced for property that was otherwise transferred to the surviving spouse (excluding homestead and support allowances and other exempt property).ย ย
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
