Avoid Common Pitfalls in Drafting Wills Before Probate

Posted by David L. Robbins on December 18th, 2014

Failing to Meet Statutory Requirements

One of the most common mistakes that is not discovered (or at least known to the family until Probate) is that Mom or Dad didn’t meet the statutory requirements for a will. What are the statutory requirements for a will in the State of Tennessee?

In order to be valid, in Tennessee, a will must be:

1) Written (there are some exceptions, but they are rare and even more onerous);

2) Signed by the person making the will (known to the legal community as the “Testator”);

3) Witnessed by two competent witnesses who are in the presence of the Testator and each other at the time of signing.

(For more information see Tennessee Code Annotated Section 32-1-104).

Although it is not required, many attorneys will have the witnesses sign an Affidavit. This is known as a “self-proving” affidavit. This excludes the requirement that the two witnesses appear in Court and verify that they have signed the will and that their signing met all of the statutory requirements.

Here are some examples of problems I’ve run across:

Elizabethton, Tennessee – Two Adult Children entered my office wishing to probate their father’s will. They handed me a scrap of cardboard which contained a crude drawing of the decedent’s property. It had a line down the middle with the daughter’s name on one side and the son’s name on the other side. This was not able to be probated because of the lack of a signature as well as the lack of two competent witnesses (aside from more complex problems which stem from the fact that there was no “writing” other the children’s names.

Johnson City, Tennessee – Will was drafted in 1970 in New Jersey. Although it was done by an attorney and appeared to meet the basic requirements for probate in Tennessee (note that a will executed outside of the State of Tennessee, but meeting the requirements of the State of Tennessee is still valid for probate. See Tenn. Code Ann. Section 32-1-104) the document lacked the Affidavit of the attesting witnesses. Unfortunately, one of the witnesses is dead and the other (the attorney) could not be located. Although we were still able to probate the will by navigating the proper channels and filing the appropriate paperwork, it may have been difficult for the will to stand up to a contest were there any problems with the will.

Jonesborough, Tennessee – Will was written by friend of the decedent. Although the decedent signed and the will appeared to be appropriately witnessed and otherwise executed, the will, itself, does not make any disposition of property, but instead asks that another person “do as they see fit.” Although statutory requirements have met, it is nearly impossible for the Court of any party involved to ascertain the person’s “intent.” As such, some problems that occur in drafting may not be technical problems, but practical problems which hinder the probate of a will.

Not Drafting a Will

Many people decide that having an attorney draft a will is too costly (in reality, the drafting of a will is incredibly comparable to what you would pay an online service to complete a form will only with the benefit of having a licensed attorney sit down and advise you of any consequences your action may have). Instead, they will ask a friend, relative, employee at a law office or clerk’s office, or somebody else off of the street what they need to do. A common reply is that, “Oh, your kids get everything.” or “Oh, your spouse will get everything if you’re married.” This is not the law in the State of Tennessee.

Under the laws of intestate succession (in other words, the rules for somebody who dies without a will) for the State of Tennessee, a Spouse inherits the entire Estate unless there are Children. In this case, the Spouse may share equally with the children or take 1/3 (whichever is larger). Assuming there is no spouse and no children, the decedent’s parent’s would inherit (and so on and so forth as laid out in Tenn. Code Ann. Section 31-3-104). What if there are no known relatives?

In a recent Carter County case, the Court found that no heirs could be located. As such, the money (close to a million dollars) reverted to the State of Tennessee. In another case stemming from Elizabethton, the only known relatives of an elderly, deceased nursing home patient were a distant cousin from Bristol, Tennessee (who never came to visit) and a sister living out of state. The sister indicated to the Court that she wanted to refuse her inheritance. Consequently, the only relative who inherited was the distant cousin who never had come to visit the decedent.

Unintended Disinheritance

During the last year I have come across a rash of wills which have been drafted without a second thought to their true consequences. In both cases, the couples had executed “mutual reciprocal wills” or “I love you wills”. These are wills that basically say, “If I die before my significant other, everything to my significant other”, “If my significant other dies before me, everything to my children.” In each case, I asked the couples, “Do you intend to disinherit your own children?”. In every case, each person said, “No. Why would you think that?” Here’s why….

In what I call a classic “Brady Bunch” situation (both parties are remarried with kids from prior relationships) there is a very real possibility that a simple oversight created a future battle that will bankrupt the estate and all of the parties (and possibly the drafting attorney in the event of a malpractice suit). Using the Brady Bunch as an example, allow me to illustrate:

Mike and Carol execute “mutual reciprocal wills” as explained above. Mike suffers a horrific perm related accident and dies. Carol inherits all of Mike’s estate as his sole beneficiary. Subsequently, Alice kills Carol for spilling spaghetti sauce all over the floor before a big party. As a result, Cindy, Marsha and Jan inherit all of Carol’s estate (which includes all of Mike’s estate). Greg, Peter and Bobby are left out in the cold. Do you see what I mean?

Lesson Learned

What will happen to my estate when I die? How do I prevent my wishes from being ignored? How do I protect the ones I love?

The answer is simple: consult with a competent attorney.

Each year, people leave too much to chance and their own understanding built up of half true information and misconceptions. It is simple to pick up the phone and call an attorney to get answers to your questions. Moreover, it is painless to visit a lawyer’s office and get set up with an appropriate Estate Plan. Don’t spend another year dwelling in uncertainty, contact us today to schedule your consultation and learn what you need to know about having your will, power of attorney, living will, trust or other documents drafted by a competent professional.

For more information contact David L. Robbins at drobbins@lawyerfirm.com or 423-434-4700.


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