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 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.
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)
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.
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.