There are several ways to make a will in Tennessee – through legal counsel, by writing your own, and in certain limited situation even by oral cantation. Tennessee statute sets forth the necessary requirements, and our case law contains a countless number of scenarios by which a will shall be deemed defective if not followed in accordance with the law.
It is not uncommon for people to make their own wills by writing down to whom they desire their belongings to pass. This is called a holographic will. States vary on the legal enforceability of holographic wills, but Tennessee considers holographic wills valid, provided they meet the statutory requirements. Generally speaking, a holographic will must be in the testator’s handwriting and signed by the decedent and must be proved in court by two witnesses. While this may seem simple, holographic wills are far from advisable as extensive case law has shown many things can and often do go wrong when people attempt to create their own wills.
Several problems can arise with holographic wills including ambiguity, failure to dispose of the entire estate, ademption, failure to name a fiduciary, failure to grant the executor adequate authority to administer the estate, failure to address which beneficiary bears the burden of satisfying any outstanding taxes, etc. For example, the testator may leave everything to “my brother.” What if he has two full brothers, one whom he does not keep in touch with, and a brother-in-law whom he calls his brother? To whom is the estate to be left?
Another issue is when someone does not dispose of their entire estate. Where does the remainder of the estate go? When this occurs, Tennessee law disposes of the remaining estate via intestacy laws, which will often leave possessions in the hands of those you did not intend.
Ademption occurs when you leave an asset to a beneficiary which upon your death you no longer own which could leave this beneficiary with nothing.
If you have minor children, a will should nominate guardians. If parents fail to do so, then the court will have full authority without any guidance to name the guardian which most often is the closest living relative. A closest relative, however, may not always be a best choice for raising children.
While many people think that writing their own wills is cost-efficient, if any minor aspect does not conform to the laws of Tennessee, then your beneficiaries will potentially have problems to discern in court, along with added court costs and attorney’s fees. Not only can this lead to added costs of administration, but extend the time necessary to fully administer the estate and make distributions. Consulting with an estate planning attorney to craft your will can certainly go a long way to avoid the many issues that may result with a holographic will.