When a person dies intestate (without a valid will stating to whom the decedent’s property is to be distributed) in Tennessee, property can be divided multiple ways depending on the number and types of heirs-at-law, the type of property ownership involved, and whether the decedent has any valid debts. Many factors are involved which is why it is essential to understand your intestacy rights under Tennessee law when a spouse, parent, or other family member dies without a valid will.
When a landowner dies without a valid will and the real property is owned solely by the decedent or as tenants-in-common (without rights of survivorship) with another party, the heirs’ rights vest via Tennessee intestacy law. In Tennessee, if the decedent is married with no children, then the surviving spouse receives 100% ownership of the real property. If married with one child, the surviving spouse and one child each inherit a 50% undivided interest in real property. If married with two or more children, the surviving spouse inherits a 1/3 share and the children split the remaining 2/3 in the property. If not married, then all children inherit an equal interest in the property. And finally, if no spouse or children, then parents inherit, if living; otherwise, siblings (or their descendants if predeceased); otherwise, to grandparents (or their descendants if predeceased); otherwise, the property will escheat to the state of Tennessee.
When real property passes via intestacy in Tennessee, the heirs-at-law must evidence the chain of title. This is generally done through the public recording of an instrument called an affidavit of heirship which is a sworn affidavit stating the facts concerning the relationship of the heirs to the decedent and any other facts pertinent in determining the decedent’s heirs-at-law.
A decedent’s joint ownership interest in real property located in Tennessee with their spouse as tenancy by the entirety or otherwise as tenants-in-common with rights of survivorship, vests 100% in the surviving spouse immediately upon the decedent’s death. To evidence ownership, a title company will generally request a copy of the decedent’s death certificate.
If a decedent has creditors, their real property, by passing by Tennessee intestacy law and otherwise, may be subject to such creditors. In some situations there are ways to cut off certain unsecured creditors. In other situations, such as when a Tennessee decedent has debts owed to TennCare (Tennessee’s version of Medicaid), the Internal Revenue Service, or the Tennessee Department of Revenue, it may be difficult, if not impossible, to cut of certain creditors.
To avoid the costs and complications associated with dying intestate in Tennessee, it is generally advantageous to have a valid will (or revocable trust). When, however, a loved one passes intestate, an heir-at-law can, with proper legal guidance, protect their inheritance by taking the necessary legal actions necessary to enforce Tennessee’s intestacy laws.