Basics of Estate Planning
We’ve all seen TV dramas where a person’s will is read and gasps arise from the audience from those who got overlooked or left out. While real life is not always that dramatic, having a will – or last will and testament – is the basic building block of estate planning, though other options can be more beneficial to you and your heirs.
In a will, you designate a personal representative to take charge of your estate when you’re gone and designate to whom your assets will be distributed. When you pass away, your personal representative will take your will – and death certificate – to a probate court to begin the process of fulfilling your wishes.
Probate proceedings, often held in chancery courts in Tennessee, can take from six months to a year or more to complete. The personal representative, now called the executor of the estate, will have to survey and manage all assets, and will also have to satisfy all creditors who come forward while being under the supervision of the court.
If a person dies without a will, which is called dying intestate, probate proceedings must still take place, but in this case, the court itself will decide on the distribution of assets – what, how much, and to whom.
Living Trusts: Alternative to a Will
To avoid the entire probate process, you can execute a living trust to carry out the same functions as a will. Instead of naming a personal representative, you designate a trustee, who will take over the management of your estate if you die or become incapacitated. In the meantime, you maintain full control. The beauty of a living trust is that it does not have to go through probate, which can expedite the estate transfer process.
The trustee you name can be a spouse, family member, trusted friend, or associate – anyone who will carry out your wishes without reservation. You can also designate a professional trust organization or individual to be the trustee.
Even with a trust, you may still need a will, especially if you have minor children and you wish to name a guardian. You cannot name a guardian in a trust. A will also will cover any assets you neglect to include in your trust or that you acquire late in the game.
Advance Health Care Directive
Estate planning not only involves caring for your loved ones, but also preparing for any eventuality that may befall you. Generally, this means to have legal documents in place should you become incapacitated and unable to speak for yourself and make your wishes known.
While a living trust will transfer your estate to a trustee to be administered in your place, an advance health care directive, alternately called a living will, can specify your medical wishes should you end up hospitalized and unable to speak for yourself.
Generally, advance directives are associated with “do not resuscitate” orders, but they can also cover the use of antibiotics, blood transfusions, tubes to deliver food and water, and equipment that helps the lungs, kidneys, and other organs to function, among other medical care options.
The advance directive is accompanied by what is called a durable power of attorney, which names someone to carry out your wishes as specified in your directive.
Assets Transferrable Without a Will or Trust
Some assets will pass to your beneficiaries without the need of a will or trust. Generally, these are jointly held assets or assets that have a named beneficiary. Examples include:
- Property held in joint tenancy, including real estate and bank accounts
- Life insurance policies with a named beneficiary
- Retirement plans and annuities with a named beneficiary
- Payable-on-death bank accounts
- Assets registered on a transfer-on-death form, including securities and vehicles
Small Estate Administration
Tennessee law provides for what is known as “small estate administration” if assets of the decedent, outside of those that pass automatically (see above), are $50,000 or less, not counting real estate. It can be used to transfer all assets except real estate, which often will be covered by joint tenancy. To use this process, you must apply and pay a fee to the probate court.