If a person in Tennessee has a will, the will dictates who will receive the property the deceased owned at death. If there is no will or if a court finds the will invalid because the testator, or maker, was not of sound mind, the testator was coerced or the requirements of forming a valid will were not followed, the state laws of intestacy determine who stands to inherit the decedent's property.
When a person dies, the assets that he owns at death are considered part of a probate estate. Some assets are not part of this estate because they are transferred at the time of death, such as life insurance policies, accounts with a payable-on-death transfer form on file with the financial institution or property that is owned jointly with the right of survivorship.
If a person has a will, the executor that he named petitions the probate court in the county where the person died to open probate. If he had no will, someone interested in serving as the executor can petition the court. In Tennessee, probate is necessary for all estates that include real property or that have a value greater than $50,000.
The executor has to file inventories of assets with the court, contact heirs, beneficiaries and creditors and file certain documents with the court. After all debts are paid off, the executor distributes the remaining assets to the people named in the will. If there is no will, state laws of intestacy determine to whom the assets go and to what proportion.
The probate process is only concerned with those assets considered "probate assets." Other assets that are transferred to a trust, to a co-tenant with right of survivorship or through a payable-on-death transfer avoid going through probate.
Rights of Surviving Spouse
Under Tennessee law, a surviving spouse has the right to keep whatever the will gives her or to take an elective share. As the Tennessee-based Collins Law Firm explains, this law prevents a spouse from cutting the other out of the will or leaving so little to the other spouse that she could not be independent. The amount of the elective share is based on how long the couple was married. For spouses married less than three years, their share is 10 percent of the estate. If married less than six years, their share is 20 percent. Marriages of less than nine years correspond with 30 percent of the estate and marriages longer than nine years result in the highest percentage of 40 percent of the estate.
Tennessee law also gives the surviving spouse the right to live in the marital home for the rest of her life, even if the will says something different. The survivor is also entitled to one year's worth of support from the estate while it is in the midst of the probate process.
The probate court has the discretion to give the surviving spouse personal property in lieu of the year's allowance.
If there is no will, the surviving spouse is entitled to all of the estate if there are no surviving descendants of the decedent, such as children, grandchildren or great-grandchildren. If there are surviving descendants, the surviving spouse is entitled to the greater of one-third of the estate or a child's share.
Rights of Surviving Children
Under Tennessee law if a person has a valid will, the beneficiary is only entitled to what is listed in the will. Tennessee law permits a person to disinherit his children. Although it is a common belief that someone can be disinherited by giving them $1 in the will, Tennessee estate planning lawyer Ryan Higgens explains that this is a misconception and unnecessary. The preferred method is for the individual to spell out in his will that the person is being excluded so this information is clear if the child chooses to contest the will. However, surviving children get the family home after the surviving spouse dies.
If there is no will and no surviving spouse, the surviving children are entitled to the entire estate. Stepchildren do not stand to inherit anything under the Tennessee laws of intestacy if the decedent never adopted them.
Rights of Other Surviving Relatives
Tennessee law provides for other relatives to inherit the decedent's property if he had no surviving spouse or descendants, giving priority to family members who are more closely related to the decedent. If there is no will or the will is invalidated, the following relatives of the decedent stand to inherit in order:
- nieces and nephews
- aunts and uncles