Tennessee Estate Planning Law : Tennessee Estate Planning Lawyer & Attorney : Bryan Howard : Howard & Mobley Law Firm : Nashville, Chattanooga, Memphis

I recently met with a couple for whom I prepared Wills in 2006. They want to make a change to their Will because a member of their family died unexpectedly. When they went to their lockbox, they were unable to find their original Wills. Fortunately, they still have the ability to sign new Wills.

What would have happened if one of my clients had died and the survivor was unable to find the Will? It is likely that we could have probated a copy of the Will. Tennessee law allows a Court to probate a copy of the Will when there is credible testimony that the Will has been lost and that there was no intention to revoke the Will. I have successfully probated copies of Wills on 6 or 7 occasions. Every time that I have probated a copy, no one objected and a close family member was able to give credible testimony about the Will being lost.

You should assume that your heirs will be unsuccessful in probating a copy of your Will. When the original Will cannot be found, there is a strong presumption under Tennessee law that the Will was revoked. There have been numerous cases where the Court refused to probate a copy of a Will. If the Court refuses to probate the copy, the Court will choose an administrator to manage your estate and distribute your assets according to the intestate succession laws of Tennessee.

Due to the problems caused when your original Will cannot be located, it is very important that you keep your original Will in a lockbox or other safe location. You also need to make sure that one or more trustworthy persons knows the location of your original Will.

Revocable trusts do not have the same problem. The Trustee does not have to produce the original Trust Agreement in order to carry out its duties. This is another potential benefit of a revocable trust.
 

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Tennessee has enacted a new law that will allow Courts to modify the terms of a Will to achieve the decedent’s probable tax objectives. Because the decedent will not be available, the Court will have to rely upon guidance from the decedent in the Will or another document and/or testimony from the decedent’s estate planning attorney and/or other advisors who were aware of the decedent’s tax objectives.

Courts will prefer to rely upon written guidance from the decedent. Therefore, I plan to add a new paragraph to Wills that I draft stating “I want my family to pay the least amount of federal and state, estate, inheritance, income and generation-skipping transfer taxes.” This provision will need to be modified for testators who do not mind paying higher taxes when it allows them to better accomplish their objectives.

When the decedent does not provide guidance of his or her tax intentions in the Will or another document, the Court will have to rely upon testimony from the decedent’s advisors and/or family members. I can envision cases where this works well. I also anticipate more difficult cases where determining the decedent’s intent will be more problematic for the Court.

The new law will become effective July 1, 2010. However, the Court is allowed to provide that the modification has retroactive effect.

The new law only applies to Wills and not revocable trusts. However, the Tennessee Uniform Trust Code already contains provisions that allow a Court to modify the terms of a trust to achieve the Settlor’s tax objectives. T.C.A. § 35-15-416.
 

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I have received several inquiries about steps that can be taken to protect assets when your spouse or parent continues to drive when they should not be driving.

The obvious answer is to try to persuade the person to give up the car keys. It helps if you can offer a plan for providing transportation assistance. When the person refuses to stop driving, there are some steps that can be taken to protect assets.

I advised one woman to change the ownership of the car from joint ownership to her husband. If her husband has a wreck, this should decrease the chance that her assets will be endangered. Incidentally, you should also change the title for your child’s car when your child turns age 18.

Another couple decided to transfer their assets to two separate asset protection trusts, one for the husband and one for the wife. In addition to providing asset protection, these trusts will operate as a probate avoidance mechanism, similar to a revocable trust.

For years, my durable general power of attorney form has authorized the agent to transfer the principal’s assets to a revocable trust established by the agent for the principal’s benefit. I have now expanded this power to provide the agent with the ability to transfer assets to an asset protection trust established by the agent for the principal’s benefit.

Incapacitated persons seldom attempt to drive. However, I know of situations in which persons with dementia have assaulted other persons. If assets have been transferred to an asset protection trust prior to the assault, the assets should be protected from any monetary judgment resulting from the assault.
 

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