When we reach a certain age, there comes a point when we begin to think about what we will leave behind once we pass on. It’s an inevitable part of life that is difficult to talk about, but essential to discuss and prepare for in order to give our loved ones solace, comfort, and resolution when we’re gone. One such way to ensure that your family is taken care of, and that all your worldly possessions and assets are properly seen to in a way you would like, is to draw up a will.
A will is meant to outline your final wishes to your family. While these typically go undisputed by those involved, if you have a large or contentious family, arguments may rise, and some may look for any reason they can to challenge the validity of the will. Often, wills are typed up these days and printed out, but handwritten wills are still valid in many states. Handwritten wills can bring their own issues when it comes to possible contention from family or friends.
What is a will?
A will is a legal document that spells out the testator’s (the person who died) final wishes, including plans concerning any underage children that they leave behind, as well as what is to be done with their property and other assets. If the person chooses not to leave a will, often it is left up to the state of Tennessee to make these important decisions for them.
We may think that only the very wealthy need a will, but if you have any important assets or you have young children, a will can make all the difference for your family and their happiness and financial stability.
What are the different types of wills in Tennessee?
In Tennessee there are three types of wills that are legally acceptable:
- Attested wills. Attested wills are the most common. The will is executed through the signature on the document by the testator themselves, the acknowledgment of the testator’s signature that may have already been made, or the approval of the testator should someone else be signing the will for them. In all three of these cases, there must be two witnesses to sign the will in the presence of the testator, and in the presence of each other.
- Nuncupative wills. According to TN Code § 32-1-106 (2021), nuncupative wills are spoken-word wills, and are only made if the testator is in “imminent peril of death, whether from illness or otherwise, and shall be valid only if the testator died as a result of the impending peril.” In the process of making the will, the testator must declare that what they are speaking is their will. There must be two disinterested witnesses present. Once the declaration has been made, one of the witnesses must put the will into written word within 30 days of the will’s declaration. If there is already a written or attested will in place, then the nuncupative will does not change or replace the already existing will.
- Holographic wills. Holographic wills are handwritten wills. Unlike the other two types of wills, a holographic will does not need witnesses when it is created; however, the handwriting of the testator’s will must be attested to by two witnesses.
As we can see, holographic wills can be tricky, as they do not need to be created in the presence of any witnesses. However, there do need to be witnesses at some point to agree and sign to the fact that they believe the handwriting to be that of the testator.
Why might a holographic will be contested?
The problem with holographic wills is that they are not witnessed (or they do not have to be witnessed) when they are made. This means that no one may know in what mental state the testator was when writing the will, who was with the testator when the will was created, or whether the will and the testator’s signature could have been forged all together.
All of these possible issues leave room for those who disagree with the will to contest it. If children weren’t properly included or business partners believe that they weren’t properly considered, they can contest the will; and with a hand-written will, they may have plenty of reasons to use as to why the will is not valid. Any beneficiary of the will is allowed to contest it so long as they have proper grounds to contest.
It is important that the testator picks out reliable witnesses to sign the holographic will, so that when it comes time to go over it after the testator has died, others involved with the will can trust that the witness’ judgment is reliable and sound.
A list of reasons why someone may choose to contest a will include:
- The testator was not of strong mental capacity when signing the document.
- No witnesses were present when the testator signed the will.
- A forged signature.
- No signature at all.
- Fraudulent actions were taken.
- Technical flaws in the will.
- The testator was under duress when writing the will.
How does probate work?
Probate is a mandatory process wherein the last will and testament of the testator is presented to the Probate Court in order to determine its validity. If the will is valid, the Court will see to it that the will is taken care of, and the last wishes of the testator are followed through.
If someone decides to formally contest the will, it can lengthen the entire probate process, keeping the estate tied up in legal complications, with all assets of the testator frozen.
How can a Maryville probate lawyer help me?
You should hire a probate lawyer as soon as you decide you or your loved one want to write a will. Hiring a lawyer before the will is created can make sure that all of the testator’s assets are inventoried and evaluated, all documents and finances are properly taken care of, manage disputes, settle debts, and distribute assets. This way, the family can better avoid anyone contesting the will and prolonging the probate process through litigation.
If you yourself are, or someone in your family is, seeking to create a will, meeting with a Maryville probate lawyer is in your best interest. End-of-life business can be difficult and complex, and we want to help to make it simpler and easier during a time that is wrought with grief and stress.
We at Shepherd & Long can ensure that the testator’s will and testament are properly taken care of, and that the probate process is handled as quickly and neatly as possible. No one wants their loved one’s death drawn out, their last wishes fought over and dissected for longer than necessary. We can help bring resolution. To schedule an appointment with an experienced probate lawyer, call 865-383-3118, or use our contact page. We’re here to help you and your family.