Does Tennessee Recognize Wills and Trusts from Other States?
It is no secret that Nashville is growing. Music City was ranked No. 20 on last year’s Forbes’s list of America’s Fastest-Growing Cities, and most predict the population will continue expanding at a rapid rate. For those people relocating to the Nashville area, it is important that they re-evaluate their current estate plans. One important consideration is whether or not current wills and trusts executed in another state will be recognized by Tennessee law.
Tennessee law recognizes three types of wills: (i) formal (attested) wills from all states provided they were executed in compliance with the laws of the original state, (ii) holographic (handwritten) wills, and (iii) nuncupative (oral) wills.
Certain requirements must be met for a formal (attested) will to be recognized by Tennessee law. The document must be in writing, signed by the testator, and attested to by two witnesses. Additionally, a self-proving affidavit is generally advisable to incorporate into the will in order to assist in establishing the will’s authenticity.
While Tennessee recognizes wills validly executed in other jurisdictions, it is important to note that Tennessee’s laws of descent and distribution are specific to our state. So even if a will from another state is formally recognized in Tennessee, it may not be structured in such a way or contain all the provisions necessary to allow the will to be most effective in carrying out your desires in Tennessee.
Depending on the nature of your assets and your estate planning objective, it is advisable to re-evaluate the status of your current estate plan with the help of an estate planning attorney licensed to practice in Tennessee. This will help ensure that your estate plan is structured so as to avoid any Tennessee specific “pitfalls” concerning our descent and distribution laws.
Holographic (handwritten) wills are required to have been handwritten by a testator who is at least 18 years of age and of sound mind. Additionally, a handwritten will needs to contain certain material provisions and must be able to be properly authenticated. Some individuals may wrongfully assume that this is a quick and easy route to planning their estate, but creating such a document can lead to a great deal of confusion not only about your actual wishes, but to the validity of such a document.
Most probate litigation involves undue influence, incompetence and/or a self-prepared instrument. For these reasons, while holographic wills are recognizable by Tennessee law, it is always advisable to prepare and execute a formal will with the assistance of an attorney, especially when the well-being of your family and future disposition of your estate is at hand.
Nuncupative (oral) wills are in fact legal in Tennessee (and in a few other states), but they are extremely rare because they may only be established under certain limited situations and may only be utilized to dispose of an extremely limited amount of personal property.
It is also important to consider the location of your current will. If your will was left under the care of an attorney whose law office is located in another state, it may be difficult to locate such a will at a later time. The same could be said for a will that was left in a safe-deposit box in another state. If your will came along with you in a recent move, make sure it does not get lost in the shuffle and find a safe spot for it in Nashville. Regardless of where your will has been kept, if it is going to be recognized under any state’s law, possession of the signed, original will likely be necessary.
Part of setting roots in a new city is truly allowing you and your family to feel secure in that city. To protect your family, consider having an estate planning attorney review your existing estate plan to ensure it is consistent and in compliance with Tennessee law.