What Happens in Tennessee when A Resident Dies without A Will?
May 11, 2015
It may be surprising to learn that many (if not most) people who die in Tennessee do so without a valid will in place. After all, estate planning is hardly an obscure area of law. Still, many of us are uncomfortable at the prospect of pondering the prospect of their own demise, while others may simply procrastinate, assuming that their death is not yet imminent. In addition, sometimes the families of people who have created a valid will—or an invalid will that they believed to be valid—find themselves, upon the death of that loved one, in a situation where they are unable to locate the will, or they find that the will is not valid in Tennessee, or that the will is somehow defective.
The legal expression for dying without a valid will is dying “intestate”, and when this occurs in Tennessee, there are a set of state laws in place which determine what is known as “intestate succession”—a fancy way of saying “who gets what”. Here’s how these statutes work:
First, not all assets may be passed through intestate succession—or a will for that matter. For example, a house owned by two spouses as either a joint tenancy or a tenancy by the entirety, automatically passes to the surviving spouse. Assets with named beneficiaries or existing transfer-on-death provisions, such as life insurance proceeds and bank accounts, are also exempt from this process. And finally, many people wishing to avoid probate do so by transferring their assets to a trust. Thus, the first order of business for a court-appointed Tennessee estate administrator is to determine which assets are not exempt from probate and to then calculate the total value of the estate.
Next, a determination is made as to whether the deceased owes any debts, taxes, or other expenses. These obligations must be paid by the estate before the remaining property is ready to be divided among the surviving relatives of the deceased.
Tennessee law then dictates that the estate be divided as follows:
A surviving spouse takes the entire estate if the deceased has no children or descendants. If the deceased has one or two children, the surviving spouse divides the estate equally with the children, but must receive at least a 1/3 share.
If there is no surviving spouse, children of the deceased are entitled to equal shares. Because a surviving spouse must inherit at least 1/3 of the estate, these shares are divided equally among the remaining 2/3 of the estate where three or more children are involved.
Descendants of the deceased are entitled to equal shares of their parents’ share if their parent has also died. Therefore, in cases involving a surviving spouse and two surviving grandchildren, the grandchildren would split a 1/2 share (1/4 each) if they share the same parent; if the grandchildren are cousins, each would get a 1/3 share along with the surviving spouse. If the grandchildren have a single, surviving aunt and uncle who is also a child of the deceased, they would split a 1/3 share of the estate (1/6 each). If applicable, this distribution scheme continues with great-grandchildren.
If there is no surviving spouse, child, or other descendant:
A surviving parent is entitled to the entire estate. If both parents survive, each inherits a ½ share.
Siblings of the deceased take when there is no surviving parent. Surviving children of dead siblings are entitled to equal shares of their parents’ share.
Surviving grandparents take if there are no siblings;
Cousins take when there are no surviving grandchildren
Finally, when the deceased is determined to have absolutely no surviving family members, the entire estate “escheats” to the state of Tennessee.
Obviously, such a strict formula fails to take into account any number of things, beginning with the actual wishes of the deceased, as well as the relative need of each heir. In addition, the intestacy laws incorporate certain requirements of proof before permitting a child born out of wedlock to inherit from a deceased father (and vice-versa) while completely excluding stepchildren and foster children. Finally, posthumously born family members have inheritance rights equal to any other relative, provided that they were conceived while the deceased was still alive.
Finally, when an estate includes real property, it may be impossible to properly divide it into equal shares without selling the property. Obviously, settling disputes and finding solutions in these types of situations can be time-consuming and difficult.
The Nashville estate planning attorney at Middle Tennessee Family Law would like all Franklin, Brentwood and Nashville area residents to be aware of any provisions and limitations created by the state’s intestate succession laws so that they may take action today if there is a chance that their actual wishes may be disregarded should they die without a valid will. We believe that the creation of a will, or another suitably effective estate planning option such as a living trust, is very likely to provide a superior means of providing for your loved ones in the future. We urge you to contact us today for a free consultation to learn more. Please don’t put off this important task any longer. We offer evening and weekend appointments for your convenience.