Wills - Nashville School Of Law - Kennedy

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Estate & Wills

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Controlled transfer of wealth from decedent to relatives/named beneficiaries in will.

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Intestate

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Person dying without a valid will. The decedent is called “the intestate” and dies intestate.

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Testate

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Person dying with a valid will

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Testatrix

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Women who died with a living will.

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Testator

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Man (or woman) who died with a valid will

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Partially Intestate

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When a decedent’s will doesn’t dispose of all of his or her property

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Statutes of Descent and Distribution

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Statutes on intestate succession

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Intestate Succession

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statutes come from English common law canons known as the law of descent and distribution; the list of heirs who qualify to take property from an intestate decedent.

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Descent

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Covers the inheritance of land

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Distribution

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covered personal property, which passes on to the personal representative. Then to those entitled to it, less debts owed.

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Personal Representative

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Fiduciary who takes possession of personal property for purposes of properly administering the estate. “Middle man” who distributes personal property after death.

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Administrator

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Court appointed representative in an intestate situation (without will).

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Executor

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Fiduciary -- named in will – who takes possession of personal property for purposes of properly administering the estate; also can be called personal representative.

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Devise

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Testamentary disposition of land or personal property; gift; taking direct title to real property (land) through a will.

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Devisee

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Recipient of testamentary disposition of land or personal property.

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Legacy

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taking direct title to personal property to the personal representative through a will.

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Distributee

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one who takes title to personal property by intestate succession.

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Heirs

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possession of land by intestacy. BLOOD RELATIVES

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Ancestors v. Descendants

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A-precede us
D- follow us

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Collateral Heirs

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brothers, sisters, aunts, uncles, cousins.

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Decedent’s Probate Estate

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Consists of property owned by the decedent at death and property acquired by the decedent’s estate at or after the decedent’s death.

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Nonprobate Instruments

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Revocable trust, life-insurance contract, pension account; joint bank or stock account.

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Non-Probate Asset

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an asset that does not go through the will. (also known as will substitutes).

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Probate Asset

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an asset listed in the will.

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Testamentary trust

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Trust created by will.

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Lifetime Trusts
Inter Vivos (living) Trusts or NonTestamentary Trusts

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Trusts created by nonprobate instruments.

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Trust

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Fiduciary relationship with respect to property, in which title and beneficial ownership are separate.

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Trustee

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Holds title to and manages the trust property for the benefit of another person(s) called the beneficiary(ies).

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Freedom of Disposition

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We can give away property during our life, pass it on after death, choose who gets it, the timing, and even restrict the choices people make after they die.

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Age to Make Will

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18 by statute

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INTESTATE - TO DIE WITHOUT A VALID WILL

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Descent (Land)
Heirs
Distribution
Distributee’s
Descent and Distribution

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TESTATE - TO DIE WITH A VALID WILL

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Devisee
Devise (land)
Legacy
Legatte

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Legacy - Legatee

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The disposition of personal property by will is a legacy (also known as a bequest). The person who receives the land is the legatee (no such thing as a bequestee).

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If No Will in Tennessee

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Tennessee law writes a will for the decedent and Tennessee law follows the bloodlines.

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Real Property Outside of the Boundaries of that State

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You must do ancillary probate in the state where the real property lies (no jurisdiction across state lines; no federal laws).

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Probate Estates

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items that are in the name of the decedent or bequests in the will.

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NonProbate Estates

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include insurance policies, joint accounts, jointly held real estate, annuities, retirement accounts and trusts. NOTE: Insurance policies are not part of the probate estate as long as they are not payable to the estate of the decedent; if the policy is payable to the estate, it is part of the probate estate.

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Examples of Will Substitutes/ Pure Will Substitutes

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Life insurance, pension accounts, joint accounts and revocable trusts

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2 Mandatory Requirements for a Will Substitute

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1) Each is functionally indistinguishable from a will;
2) Each reserves to the owner complete lifetime dominion, including the power to name and to
change beneficiaries until death

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Differences Between Will Substitutes and the ordinary “Last Will and Testament”:

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1. Most – but not all – are asset specific; each deals with a single type of property; i.e., life insurance proceeds, bank account balance, etc.
2. Property that passes through a will substitute avoids probate.
3. The formal requirements of the Wills Act do not govern will substitutes and are not
complied with; probate avoidance is a significant advantage.