What Is the Role of a Last Will and Testament in Tennessee Probate?

Planning for what happens after death is not always easy, but it can spare loved ones from difficult decisions later. A last will and testament in Tennessee lets a person express their wishes, provide for the people who matter most, and leave explicit instructions for their estate.

Keep reading to learn what a will is, why it matters, and what it requires.

What Is a Last Will and Testament?

A last will is a legal document that sets out how a person wants their money, property, business ownership, and other assets to be handled after their death.

It also allows the testator (the person creating the will) to appoint someone to serve as the Tennessee estate personal representative and name a guardian/conservator for minor children, a dependable person, or pets.

How Does a Last Will and Testament Work in Tennessee?

A will takes effect only after the testator passes away. The original document is generally submitted for probate in the Tennessee county where the deceased had the primary residence.

Once the court admits the will, appoints the executor, and issues Letters of Testamentary. These letters give the executor authority to handle the estate.

From there, the executor takes control of the estate, gathers probate assets, pays valid debts, claims, taxes, and estate-related expenses, and distributes the remaining property according to the will’s terms and Tennessee law.

Why Is Having a Will Important?

A valid and up-to-date will gives a person greater control over what happens to their property after death.

Without this document, a deceased person’s assets are distributed under Tennessee’s intestate succession laws, which may produce a different result than the decedent would have wanted.

A will can also set clear instructions for the family and the estate’s personal representative.

Some of the main reasons to have a will include, but are not limited to:

Decide who inherits the property.

With a will, a person may leave a house to a beneficiary, money to another, or divide the estate among several people. The document may also include personal belongings, business shares, specific bequests, or other property included in the probate estate.

Name an executor to handle the estate.

When creating a will, the testator may decide who handles the estate after death and nominate an executor who is trustworthy, responsible, and capable of managing the work involved.

Once properly appointed, the personal representative administers the estate, pays expenses, valid debts, and taxes, and distributes assets as required by the will and Tennessee law.

Choose a guardian or conservator for minor children and other dependents.

Parents can use a will to leave special instructions and name a preferred guardian for minor children and a conservator to manage property they inherit.

If one parent dies, the surviving parent will generally continue caring for the children. If neither parent is available, the court may appoint a guardian.

When naming a trusted person in the will, the parent decides who should care for the children and their daily needs, including housing, health care, and education.

A last will and testament can also address pet care. Because pets cannot inherit property directly, the owner can name a trusted caregiver and make financial arrangements for their care, including through a pet trust when appropriate.

Reduce the risk of family disputes.

Sometimes, uncertainty about a deceased person’s wishes may create disagreements among family members, especially when valuable or sentimental property is involved.

A will can prevent some of that uncertainty. It puts that person’s wishes in writing, making it easier for their family members to know who should receive the home, money, personal belongings, or other assets.

Although a will can’t guarantee no dispute will arise, clear instructions may leave less room for conflicting interpretations.

Make estate administration easier.

A well-drafted will gives the executor and beneficiaries a clear outline for administering the estate. It identifies the intended beneficiaries, explains how probate property should be distributed, and names the person chosen to manage the process.

These are some of the main benefits of having a will, and they are not exclusive.

What Are the Requirements for a Valid Will in Tennessee?

To be valid in Tennessee, a last will must meet state-law requirements that help confirm the will reflects the testator’s wishes and was properly executed.

Be of sound mind

Under Tennessee law, a person must be at least 18 years old and of sound mind to make a valid will.

Being of sound mind generally means that the testator has the mental capacity to understand that a will is being made, the nature of the property involved, and the people who would ordinarily be expected to benefit from the estate.

Signature and witness requirements.

For a will to be valid, the testator is generally expected to sign the document or acknowledge an existing signature in the presence of at least two witnesses and confirm that it reflects their testamentary wishes.

Under Tennessee law, another person may sign in the testator’s name at the testator’s direction and in their presence.

Witnesses must sign in the testator’s presence and in each other’s presence. Tennessee courts strictly enforce these formalities, and failure to follow them may prevent the will from being admitted to probate.

What Type of Wills Are Valid in Tennessee?

Tennessee recognizes three main types of wills:

• Attested (standard) wills.
• Holographic wills.
• Nuncupative wills.

Each has specific requirements that are expected to be followed for the document to be valid.

Standard (attested) will

A standard will (or attested will) is the most common type of will in Tennessee. It is a written document that states how a person wants their probate estate handled after death and must meet Tennessee’s signing and witnessing standards.

While not required for validity, the testator may also add a self-proving affidavit to eliminate the need to locate an attesting witness later to prove the will and simplify the probate proceedings.

Holographic will

Holographic wills are handwritten wills. Under Tennessee law, witnesses are not required when it is created, but the testator’s signature and all the testament’s material provisions are expected to be in the testator’s handwriting.

After the testator’s death, two witnesses are needed to verify the handwriting. Therefore, simply writing down final wishes does not necessarily create a valid holographic will.

Nuncupative will (oral will)

A nuncupative will is an oral will that Tennessee recognizes only in very limited circumstances.

According to Code Ann. § 32-1-106, a nuncupative will:

• Can be made only when the testator faces an “imminent peril of death” and later dies from that peril.
• The testator declares the statement as their will before two disinterested witnesses.
• One of the witnesses writes down the oral will, or directs someone to do so, within 30 days. And
• The interested party submits the will for probate within six months after the testator’s death.
• The oral will can distribute personal property worth up to $1,000, or up to $10,000 if the testator is in active military service during wartime.
• The oral will cannot revoke or modify an existing written will.

What Should You Include in a Will in Tennessee?

A well-drafted Tennessee will should clearly identify the people involved, explain how the estate should be distributed, and comply with Tennessee probate law.

Depending on the testator’s family, property, and estate-planning goals, the document may include:

Identify assets and beneficiaries.

The will should clearly state what property is involved and who should receive it. This gives the executor a clearer picture of the testator’s personal wishes.

Name a Tennessee executor.

The testator can choose someone to handle the estate after death. If the probate court appoints that person as executor, they can manage the estate and carry out the will’s instructions.

This includes paying debts and expenses before distributing the remaining property to the beneficiaries.

Naming a trusted, capable person can make the probate process easier for beneficiaries and reduce uncertainty about who should manage the estate.

The signatures of the testator and two witnesses.

As explained above, a standard Tennessee will requires the testator’s signature and two witnesses.

Consider a no-contest clause.

A no-contest clause, or in terrorem clause, states that a beneficiary may lose their inheritance if they challenge the will.

Tennessee recognizes these clauses but generally does not enforce them when a beneficiary challenges the will in good faith and with probable cause.

Include a self-proving affidavit.

A self-proving affidavit confirms that the will was properly signed and witnessed and can make it easier to prove the document’s validity during probate.

Although it is not absolutely required, a self-proving affidavit may eliminate the need to locate the witnesses later to confirm how the will was signed.

These are the most important provisions of a valid Tennessee will, but the list is not exhaustive. Consulting a probate attorney and discussing your specific situation may help you decide what happens next.

What a Will Can’t Do in Tennessee?

A will is an important estate planning document, but it has limits. Understanding what a will cannot accomplish can help families avoid unanticipated problems during estate administration.

Avoid probate

Having a valid testament doesn’t automatically keep an estate out of probate or transfer assets to the designated beneficiaries.

Under Tennessee law, a will generally needs to be admitted to probate before the executor may act on behalf of the estate and distribute the deceased’s assets according to its terms.

Control assets that pass outside probate

A will generally does not control property that passes directly to another person outside probate. Examples include, but are not limited to:

• Property owned with a right of survivorship, which generally passes automatically to the surviving owner.
• Assets already placed into a living trust.
• Life insurance policy when a beneficiary is named.
• IRAs, 401(k)s, or other retirement accounts that have beneficiary designation.
• Transfer-on-death (TOD) securities.
• Payable-on-death (POD) bank accounts.

These assets generally pass according to the ownership arrangement, trust terms, or beneficiary designation rather than the instructions in the will.

Provide directly to beneficiaries with special needs.

To ensure financial support and care for a loved one with special needs, leaving a share of the estate may affect the government benefits they are entitled to.

Instead, one option is to set up a special needs trust, a fiduciary agreement that is not subject to probate. It is best to speak with an experienced estate planning lawyer to discuss options such as a special needs trust.

Avoid taxes, debts, or legal disputes.

A will doesn’t eliminate the deceased’s debts or any taxes the estate may owe. The personal representative handles these obligations before distributing the remaining property.

A will can also be challenged in court if someone has a valid legal reason to question it.

Does a Last Will and Testament Need to Be Notarized in Tennessee?

No. Tennessee law does not require a standard will to be notarized for it to be valid. However, the document still needs to meet the state’s signing and witnessing requirements.

What Makes a Will Invalid or Subject to a Will Contest?

A Tennessee will may be invalid or challenged for several reasons, including:

• Improper execution – the will does not meet Tennessee’s signing or witnessing requirements.
• Lack of mental capacity – the testator was not of sound mind when signing the will and did not understand the real implications of the document.
• Undue influence – someone improperly influenced the testator’s decisions.
• Fraud or forgery – a third party used deception or falsified the document.
• Questions about authenticity – there is a dispute over whether the document is the testator’s last valid will.

These are only some reasons that may call into question the validity of the last will and testament under Tennessee law, and speaking with an experienced Tennessee probate attorney may help you understand your options.

What Happens If You Die Without a Will in Tennessee?

When a person dies without a valid will in Tennessee (intestate), the state’s intestate succession laws then determine who inherits the deceased’s probate estate.

The probate court appoints a personal representative and issues Letters of Administration, allowing the administrator to handle the decedent’s estate.

From there, the administrator takes care of the deceased’s probate property and outstanding obligations before passing what remains to the legal heirs under Tennessee law.

Can You Change or Revoke a Will in Tennessee?

Yes. A person can change their mind about the will during their lifetime. Tennessee law allows a testament to be revoked by replacing it with a later will or by intentionally destroying or canceling it.

A separate written revocation may also be used if it meets the legal requirements. Certain changes in family circumstances can also affect a will.

What Is a Codicil to a Last Will?

A codicil is a legal document used to change, add to, or remove certain provisions of an existing will without replacing the entire document. In Tennessee, a codicil must generally meet the same execution requirements as a will.

Do You Need an Attorney for a Last Will and Testament in Tennessee?

Tennessee law does not require an attorney to prepare a will, but legal guidance can be especially useful for blended families, minor children, significant assets, business interests, or beneficiaries with special needs.

Bottom Line

A will is an important part of an estate plan and explains how a person wants their probate assets distributed after death. However, a will cannot avoid probate, control assets that pass outside probate, or even prevent every estate dispute.

If a loved one has died and left a Last Will and Testament in TN, our probate attorneys can help you understand the next steps and guide you through the probate process.