C²Law :: blog

Exactly WHY do I need a will?

August 20, 2010 at 2:04 pm 3 comments

I offer no-cost consultations with anyone interested in planning his/her estate – and while I’ve been talking with folks about their wills and related documents for more than 12 years now, it still amazes me how many people have no idea what happens to their ‘stuff’ when they die without a will.

I practice in Tennessee, so what I’m about to say only applies in this state.  Each state has its own laws, but they all do have ‘rules’ about where stuff goes at death if a person doesn’t make other plans through a will.

So where does my stuff go if I die in Tennessee without a will?  This is a multi-level question, and depends upon a lot of factors.  The formal term for this is ‘intestate succession’ and details are set out in TCA § 31-2-101 through 110.

So where to begin?  Pick the description of your situation:

Married with no children: your entire estate goes to your spouse

Married with children: your spouse receives 1/3^rd or a child’s share, whichever is greater (e.g. if you are married and have one child, then your spouse receives half and your child receives half; if you are married with three children, your spouse receives 1/3^rd and your children each receive 1/3^rd of the remaining 2/3^rds, which equals 2/9^ths; in any of these instances, if a child is deceased, then his/her share goes to his/her living children if any (your grandchildren) or if none, then your remaining children share equally)

Unmarried with children: your children each receive an equal share

Unmarried with no children: to your parent(s), if living; if only one living parent, then he/she takes all

If parents aren’t living: to your brothers and sisters equally (or to a sibling’s children if a sibling is deceased but has children – the children then share equally in the deceased parent’s share)

If no siblings, nieces or nephews: one-half to paternal grandparents (if living) and one-half to maternal grandparents (if living) – the children/grandchildren (whomever is the closest in kinship still living) take the share of a deceased grandparent; example:  if your paternal grandmother is living but your paternal grandfather is deceased, then your paternal grand-mother receives ½ of your estate and the rest is shared between your maternal grandparents if both are still living – but if both maternal grandparents are deceased, then their ½ is shared equally by all of their living children (your cousins) or if they have no living children but do have living grandchildren, then the grandchildren receive the grandparents’ share

*However – if there are no living relatives on one side, then the other side receives your full estate; for example, if your paternal grandparents are deceased and have no living children,grandchildren, etc., then your entire estate passes to your maternal grandparents or their closest living relatives if they are deceased

There are yet more twists and turns if you die without any living relatives whatsoever.  But that is a subject for another day.

Suffice it to say, most folks would make plans other than the path Tennessee provides when you die without a will.  If you are married and have two very young children, do you intend for your children to inherit as much as one-half of your estate?  Most often, the answer to this question is no.  You likely want your spouse to inherit everything, and have full legal authority to use your entire estate in a manner that is best for your family.

There are many, many scenarios that can be painted, all of questionable desirability, when following the intestate succession flow chart through to many possible conclusions.  Controlling the ultimate destiny of your estate is not a complicated process.   It involves education and thoughtful consideration.  Rely on a knowledgeable estate planning attorney to obtain the education.  You will then be prepared for the thoughtful consideration!

Generally the estate planning process takes about two weeks with my clients, from start to finish, and depending on the client’s schedule.   Next week’s blog entry will discuss the steps involved in the estate planning process – knowing what to expect can help you make the most of the process and work through it as thoughtfully and efficiently as possible.

In the meantime, feel free to contact me with any questions about this or any other estate planning topic – 615.656.4044 or cnm@csquaredlaw.com.

Entry filed under: Estate Planning. Tags: die without a will, Estate Planning, intestate succession, Tennessee, why I need a will, will.