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Updated Will Guide: Essential Information for All Family Structures

Comprehensive guide to updating your will for blended families, same-sex couples, parents, and individuals with significant assets. Learn why an updated will is crucial for protecting your loved ones and assets.

Introduction

An updated will is one of the most important legal documents you can create to protect your family and assets. This legal instrument ensures your wishes are carried out after your passing, providing clear instructions about how your property should be distributed, who will care for minor children, and how your affairs should be managed. Without an updated will, state laws determine what happens to your assets and dependents, which may not align with your intentions. This guide explains the importance of keeping your will current, especially for blended families, same-sex couples, parents with minor children, and individuals with significant assets. Understanding the basics of an updated will can help you make informed decisions to protect your loved ones and provide peace of mind for your family's future.

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Key Things to Know

  1. 1

    Without an updated will, state intestacy laws determine how your assets are distributed, which may not align with your wishes for your family members.

  2. 2

    For blended families, an updated will is essential to ensure all children (biological and step-children) are provided for according to your intentions.

  3. 3

    Same-sex couples benefit from the legal protections an updated will provides, especially in regions where legal recognition may be evolving.

  4. 4

    Naming guardians for minor children is one of the most important functions of a will for parents.

  5. 5

    Your will should be reviewed and potentially updated after every major life event (marriage, divorce, birth of children, significant asset acquisition).

  6. 6

    For those with significant assets, an updated will should work in conjunction with trusts and other estate planning tools to minimize taxes and maximize asset protection.

  7. 7

    Digital assets, pets, and sentimental items should be specifically addressed in your updated will to avoid confusion or conflict.

  8. 8

    Working with an estate planning attorney familiar with your specific family structure is highly recommended to ensure your will accomplishes your goals.

Key decisions before you file

Before you file a Updated Will in Tennessee, a few decisions shape the document: which option to choose and what each one means. The Updated Will guide walks through them.

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Tennessee Requirements for Updated Will

  • Testamentary Capacity (Tenn. Code Ann. § 32-1-102)

    Under Tennessee law, the testator must be of sound mind and at least 18 years old to execute a valid will. Sound mind means understanding the nature and extent of one's property, the natural objects of one's bounty, and the disposition being made.

  • Will Execution Requirements (Tenn. Code Ann. § 32-1-104)

    A will must be in writing, signed by the testator (or by someone else in the testator's presence and at their direction), and attested by two witnesses who sign in the presence of the testator and each other.

  • Self-Proved Will (Tenn. Code Ann. § 32-2-110)

    A will may be made self-proved at the time of execution by attaching an affidavit signed by the testator and witnesses before a notary public, eliminating the need for witness testimony during probate.

  • Holographic Wills (Tenn. Code Ann. § 32-1-105)

    Tennessee recognizes holographic (handwritten) wills if the signature and material provisions are in the handwriting of the testator, even without witness signatures.

  • Revocation of Wills (Tenn. Code Ann. § 32-1-201)

    A will may be revoked by a subsequent will, codicil, or by physical act (burning, tearing, canceling, obliterating, or destroying) with the intent to revoke.

  • Effect of Divorce on Will (Tenn. Code Ann. § 32-1-202)

    If a testator divorces after making a will, all provisions in favor of the former spouse are automatically revoked unless the will expressly provides otherwise.

  • Elective Share of Surviving Spouse (Tenn. Code Ann. § 31-4-101)

    A surviving spouse may elect to take an elective share of the decedent's estate instead of what was provided in the will, based on the length of the marriage.

  • Pretermitted Child Provision (Tenn. Code Ann. § 32-3-103)

    A child born or adopted after the execution of a will who is not provided for in the will may receive an intestate share unless it appears the omission was intentional.

  • Year's Support Allowance (Tenn. Code Ann. § 30-2-102)

    The surviving spouse and minor children are entitled to a reasonable allowance from the estate for their maintenance during the settlement period.

  • Appointment of Executor (Tenn. Code Ann. § 30-1-101)

    The will should name an executor to administer the estate. If none is named or the named executor cannot serve, the court will appoint an administrator.

  • Guardian Designation for Minor Children (Tenn. Code Ann. § 34-2-103)

    A will may designate a guardian for minor children, though the court makes the final determination based on the best interests of the child.

  • No-Contest Clause (Tenn. Code Ann. § 32-1-107)

    Tennessee recognizes no-contest clauses (in terrorem clauses) that can disinherit beneficiaries who challenge the will, though they may not be enforced if the contest is based on probable cause.

  • Simultaneous Death Provision (Tenn. Code Ann. § 31-3-104)

    Under the Uniform Simultaneous Death Act, if the testator and beneficiary die simultaneously, the beneficiary is deemed to have predeceased the testator unless the will provides otherwise.

  • Estate Tax Apportionment (Tenn. Code Ann. § 30-2-614)

    Tennessee law provides for the apportionment of federal estate taxes among beneficiaries unless the will directs otherwise.

  • Rule Against Perpetuities (Tenn. Code Ann. § 66-1-202)

    Tennessee has modified the common law Rule Against Perpetuities, allowing interests to vest within 360 years after creation.

  • Federal Estate Tax Exemption (26 U.S.C. § 2010)

    Federal law provides an exemption from estate taxes for estates below a certain value ($12.92 million in 2023), which should be considered when drafting a will.

  • Generation-Skipping Transfer Tax (26 U.S.C. § 2601)

    Federal law imposes a tax on transfers to beneficiaries who are two or more generations below the transferor, which may affect estate planning for grandchildren.

  • Digital Assets Provision (Tenn. Code Ann. § 35-8-101 et seq.)

    Tennessee has adopted the Revised Uniform Fiduciary Access to Digital Assets Act, allowing a testator to give directions for the disposition of digital assets.

  • Testamentary Trust Creation (Tenn. Code Ann. § 35-15-401)

    A will may establish testamentary trusts that come into existence upon the testator's death, subject to Tennessee trust law requirements.

  • Ademption by Extinction (Tenn. Code Ann. § 32-3-111)

    If specifically devised property is not in the testator's estate at death, the gift fails (adeems) unless protected by an anti-ademption statute.

Frequently Asked Questions