I have recently been asked on several different occasions by friends and acquaintances to confirm what happens to their assets if they die without a last will and testament. About 99% of the time, what the person asking believes would happen is not actually correct. Some of the common misconceptions are that a will that you download from the internet and notarize is executed properly, that a will that is handwritten is iron clad, or that you don't need a will because it will all go to your spouse anyway. While these options may be quick, easy, and cheap, they could cost your loved ones more money and headache in the end. Hopefully, this post and the rest of this series will help clear up some common misunderstandings about what happens when you don't have a will or if your will is not executed properly and fails to be admitted to probate.
If you live in Tennessee and die without a will (or die "intestate"), or if you have a will but it's not properly executed, your assets will pass under Tennessee state law pursuant to intestate succession. See T.C.A. 31-2-104. If you are married, at least part of your assets will pass to your spouse, but the amount depends on the size of your immediate family. Other than your spouse's share (or portion), assets generally pass "per stirpes," which is a Latin phrase meaning "by the blood." That means we look down to your descendants first. If you don't have any descendants, we look up to your parents. If you have at least one living parent, our inquisition stops there. If you do not, then we start looking at your siblings, or if a sibling is deceased to that sibling's descendants. No parents or siblings? We start looking at your grandparents, then your aunts and uncles, and then your cousins and their descendants.
Now that you can impress your attorney with your knowledge of "intestate" and "per stirpes," we will discuss specific scenarios and common pitfalls in the next post in this series.
The stories in this series may sound made up for dramatic effect or to scare you into paying an attorney, but I can assure you that every one of the scenarios has happened to me or someone I know. In these cases, the people who get the most out of your estate are the lawyers because when there isn't a clear and effective direction under a will, we spend hour upon billable hour helping your family figure out how to jump through the legal hoops to transfer your assets to the appropriate person. Often, spending a relatively modest amount of money to have your will prepared correctly saves tens of thousands of dollars for your family after you die. Although this is how I make a living, I would much prefer to guide people in their planning to simplify their estate while they are alive than to spend hours, months, and years working with their families to clean up the mess that was left.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.