Tennessee Wills vs. Trusts
Navigating Tennessee estate planning doesn’t have to be overwhelming. The Volunteer State offers unique estate planning features including recognition of both holographic and nuncupative (oral) wills, simplified probate for small estates, and muniment of title procedures for real estate. With Tennessee’s graduated spousal elective share based on marriage length, understanding the nuances between wills and trusts can save your family significant time, money, and stress while preserving your legacy.
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Tennessee Will Requirements
A Tennessee Last Will and Testament should include:
- Age and Capacity: Testator must be “of sound mind” and at least 18 years old
- Format: Must be in writing (except for nuncupative wills)
- Signature: Must be signed by the testator
- Witnesses: Must be signed by at least two witnesses (except for holographic wills)
Witness Requirements
For Tennessee wills:
- Witnesses must actually observe the testator sign the will or acknowledge that the signature is valid
- 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
Interested Witness Limitations
A Tennessee will is not invalidated if a witness has an interest in the will. 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. The provision voiding devises to an interested witness is inapplicable if the will has at least two other disinterested witnesses.
Self-Proved Wills
Tennessee wills need not be notarized, but a will can be proved in probate through a notarized affidavit executed by the will’s witnesses:
- The affidavit can be executed prior to the testator’s death at the testator’s request or after death at the executor’s request
- The affidavit serves in place of witness testimony before the probate court
- The affidavit must attest to the facts required to authenticate the will in probate
Incorporation by Reference
A Tennessee will may incorporate by reference a written statement or list disposing of tangible personal property not otherwise addressed in the will:
- The list must be written in the testator’s handwriting or signed by the testator
- The list must identify the devised items and intended recipients with reasonable certainty
- A list of personal property can be created before or after a will is executed
- The list can be altered by the testator as long as the testator signs and dates any alterations
- A list of personal property cannot be used to distribute cash, title instruments, securities, or items used in trade or business
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Amendment, Revision, and Revocation of Tennessee Wills
Revoking a Tennessee Will
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
- Execution of a document that expressly revokes the earlier will and satisfies legal formalities for execution of a valid will or holographic will
- Physical destruction of a will, such as by burning or tearing, with the intention of revoking the will
Automatic Revocation by Divorce
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. Property bequeathed to the former spouse is treated as if the former spouse predeceased the testator.
Children Born After Will Execution
If a child is born to a testator after execution of a will—and if the testator’s will does not specifically provide for or disinherit the child and the testator did not during life make other inheritance arrangements for the child—the child inherits the same share of the estate the child would have inherited had the testator died intestate.
Revocation by Marriage and Birth
Holographic and Oral Wills
Holographic 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
- All pertinent provisions of the will are written in the testator’s handwriting
The fact that the handwriting in a holographic will belongs to the testator must be established through testimony of two witnesses.
Oral (Nuncupative) Wills
Tennessee recognizes oral (or “nuncupative”) wills under limited circumstances:
- The testator must make the statements while in imminent peril of death (including by sickness) from which the testator does not survive
- The statements constituting an oral will must be heard by two disinterested witnesses
- The testator must declare that the oral statements are intended as the testator’s last will
- One of the two witnesses must reduce the oral will’s terms to writing within 30 days of the statements
- The oral will must be submitted for probate within six months of the testator’s death
Tennessee Trust Requirements
Trusts in Tennessee are principally governed by the Tennessee Uniform Trust Code, enacted by the legislature at T.C.A. §35-15-101, et. seq.
Requirements for a Valid Tennessee Trust
For a trust to be valid under Tennessee law:
- A Tennessee trust’s purpose must not violate the state’s public policy and must be possible to achieve
- In general, the purpose must be to benefit the interests of the trust’s beneficiaries, as those interests are defined under the trust’s terms
- A Tennessee trust is invalid to the extent it was induced through fraud, duress, or undue influence
- The settlor must have adequate capacity to create the trust and express an intent to create a trust
- For revocable trusts, the standard for capacity is the same as for wills
Trust Creation Methods
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 grantor’s declaration that property is owned as trustee
- By exercising a power of appointment in favor of a trustee
- Through a court order establishing the trust
Required Trust Elements
Tennessee trusts must also have:
- A reasonably ascertainable beneficiary (subject to exceptions such as for charitable trusts and trusts for the care of animals)
- A trustee with actual duties to perform
Sole Trustee/Beneficiary Rule
A sole trustee cannot also be a trust’s sole beneficiary.
Trustee Responsibilities
Trustees who manage assets are governed by the “prudent investor rule,” though the rule may be modified under the terms of the trust.
Oral Trusts
Though most trusts are evidenced by a written instrument setting forth the trust’s terms, Tennessee law recognizes oral trusts. However, the creation and terms of an oral trust must be established by clear and convincing evidence.
Trust Termination
Tennessee trusts terminate upon:
- Revocation or expiration under the trust’s own terms
- When there is no purpose of the trust remaining to be achieved
- When the trust’s purpose becomes unlawful or impossible
A trust may also be modified or terminated by a court upon the petition of interested parties. When a trust terminates, the trust’s remaining assets are distributed by the trustee as directed by the trust’s terms or otherwise consistently with the trust’s purposes.
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Special Considerations
Estate Taxes
No State Estate or Inheritance Tax
The Tennessee legislature repealed Tennessee’s state-level estate tax effective in 2016. Large Tennessee estates may still qualify for the federal estate tax. Tennessee does not have an inheritance tax.
Simplified Probate
Small Estate Procedures
Tennessee law provides a streamlined probate process for “small estates” (defined as less than $50,000 in value, with no real estate). If an estate qualifies:
- A personal representative named in the decedent’s will or an heir can submit an affidavit requesting simplified probate
- The affidavit states whether the decedent left a will, lists the decedent’s creditors, itemizes estate assets, and identifies heirs
- 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
Special Real Estate Transfer Process
If a Tennessee estate includes real estate and the decedent left a valid will, the will can be probated for muniment of title:
- The shortened process allows the will to serve as evidence of title to real estate
- This allows for transfer of real estate directly to a named beneficiary
- The probate court need only confirm the will’s authenticity before authorizing transfer of title
- The real estate avoids the longer ordinary probate process
Non-Probate Transfers
No TOD Deeds or Vehicle Titles
TOD designations are not available in Tennessee for real estate deeds or motor vehicle titles.
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Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Tennessee Special Feature | Recognizes both holographic and oral wills | Oral trusts recognized with clear and convincing evidence |
Conclusion
Creating a will or trust does not have to be difficult or intimidating for Tennessee residents. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests—can add complexity and result in unforeseen consequences.
Tennessee offers unique estate planning tools like holographic and nuncupative wills, muniment of title procedures for real estate, and a graduated spousal elective share based on marriage length. The state’s simplified probate process for small estates provides important options for families with modest estates. When any out-of-the-ordinary issues are present, it’s advisable to consult with an experienced attorney familiar with and licensed under Tennessee law to ensure your estate plan takes full advantage of the state’s provisions while avoiding potential pitfalls.
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FAQs: Tennessee Wills and Trusts
Q: What are the requirements for a valid will in Tennessee?
A: A standard Tennessee will must be in writing, signed by the testator (who must be at least 18 and of sound mind), and witnessed by at least two competent people who sign in the presence of the testator and each other. Tennessee also recognizes holographic wills (entirely handwritten and signed by the testator) and, in limited circumstances, oral wills made during imminent peril of death.
Q: Does Tennessee recognize oral wills?
A: Yes, Tennessee is one of the few states that recognizes nuncupative (oral) wills, but only under strict conditions. The testator must be in imminent peril of death, two disinterested witnesses must hear the statements, the testator must declare the statements are intended as their will, one witness must write down the terms within 30 days, and the will must be submitted for probate within 6 months. Oral wills can only distribute personal property up to $1,000 (or $10,000 for active military during wartime).
Q: What is muniment of title in Tennessee?
A: Muniment of title is a simplified probate procedure in Tennessee for estates that include real estate and have a valid will. It allows the will to serve as evidence of title to real property, enabling direct transfer to named beneficiaries after the court confirms the will’s authenticity. This process is faster than standard probate and is specifically designed for transferring real estate.
Q: Can I avoid probate for a small estate in Tennessee?
A: Yes, Tennessee offers a simplified probate process for small estates valued at less than $50,000 that do not include real estate. A representative or heir can submit an affidavit listing assets, creditors, and heirs. Once approved, they can collect and distribute assets without going through full probate. For estates with real property, consider a living trust or muniment of title procedure.
Q: How are surviving spouses protected under Tennessee law?
A: Tennessee protects surviving spouses through an elective share that ranges from 10% to 40% of the net estate, based on the length of the marriage. The longer the marriage, the larger the percentage. This right allows a spouse to claim this share instead of what they would receive under a will or intestate succession, preventing disinheritance.
Q: What happens if I marry and have a child after making my will in Tennessee?
A: In Tennessee, if both events occur (marriage followed by childbirth) after you execute a will, the will is automatically revoked by operation of law. This means your estate would be distributed according to intestate succession unless you create a new will. This provision is designed to protect new family members who weren’t contemplated when the original will was created.
