Tennessee State Laws on Wills

By Lee Carroll

Tennessee has complex statutory regulations regarding wills. The basic principles are clear, but the law also attempts to address a host of unusual circumstances to prevent a backlog of wills going through probate. When state regulations are followed, wills are more likely to be proved and less likely to be successfully contested, and the probate process works more smoothly. Although complications do arise, Tennessee rules help avoid the most common errors and problems.

Tennessee has complex statutory regulations regarding wills. The basic principles are clear, but the law also attempts to address a host of unusual circumstances to prevent a backlog of wills going through probate. When state regulations are followed, wills are more likely to be proved and less likely to be successfully contested, and the probate process works more smoothly. Although complications do arise, Tennessee rules help avoid the most common errors and problems.

Qualified Persons

Tennessee requires a testator to be at least 18 years old and have the mental capacity to make a will. (Reference 1, T.C.A. § 32-1-102) Mental capacity means she understands what a will is, how much property she owns, who her beneficiaries are and how the will functions at her death. Minors are not qualified to make a will in Tennessee; emancipated minors are no exception.

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Execution

Wills must be executed according to the directions within Tennessee code. Written wills should be signed by the testator (the person making the will) in the presence of two witnesses who also sign in the presence of the testator and each other. Alternatively, the testator may affirm that an existing signature is his and have two witnesses sign. If he cannot sign, another person may sign for him in his presence and before two witnesses. (Reference 1, T.C.A. § 32-1-104)

Proving

A will must be proved, or validated, by one original witness, or all witnesses if it is contested. If witnesses are deceased or unable to perform, family or friends may prove the will. If a witness cannot appear in person, she may answer a formal set of questions to be presented to the court. (Reference 1, T.C.A. § 32-2-104) Nuncupative, or spoken, wills are proved 14 days after the death of the testator once the family is notified. If the family cannot be located, notice is given in publications such as newspapers once a week for up to four weeks.

Alteration and Revocation

Wills may be altered, destroyed or replaced at any time before the death of the testator. Wills may be revoked in writing or physically destroyed. When a person gets married or has a new or newly adopted child, his will is automatically revoked and must be replaced. (Reference 1, T.C.A. § 32-1-201)

Omitted Spouses and Children

Tennessee law allows testators to disinherit children unless they are unintentionally omitted because they were born after the will was created. Omitted spouses are automatically assigned a percentage of the estate. (Reference 1, T.C.A. § 32-3-108) The spousal percentage varies based on different factors, and is never less than one-third of the estate, explains Legal Aid of East Tennessee. Unintentionally omitted children inherit according to the laws of intestate succession, which govern how an estate is distributed when there is no valid will.

Public Record

Before a will is filed with the court, it is a private document. However, all wills become public record after they are filed with the court and are validated through probate. Anyone may view the will of another person once it is public record. Copies are obtained from the clerk for a fee.

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Define a Legal Last Will & Testament in Tennessee

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Problems Probating a Will

When a person dies having made a will, it's referred to as dying "testate." Before a testate decedent's estate can be administered in probate court, his will must be admitted. Often, admitting a will to probate goes off without a hitch — the will is accepted as valid and the probate process proceeds. Sometimes, however, problems can arise. Under these unfortunate circumstances, it's generally advisable to consult an experienced estate planning attorney for assistance.

Types of Last Will & Testaments

Testators can use various types of wills to establish an estate plan. The most prevalent type is the written will, accepted in every state. However, not all testators have the opportunity to execute a written will that complies with statutory guidelines prior to passing, so state law began to recognize additional formats under certain circumstances. Not all types of wills are recognized in every state, so you should consult with an attorney before establishing any type of will.

Are Holographic Wills Legal in the State of Tennessee?

A holographic will is a will that is written by hand instead of printed or typed. The state of Tennessee generally recognizes holographic wills, but the Tennessee Code has particular requirements for their validity. In order to make a valid holographic will, you must have the general capacity to create a will, which in Tennessee means you must be at least 18 years of age and of sound mind.

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