Do I Need a Will?

Estate planning isn’t just for the select few. An individual needs a Last Will and Testament for numerous reasons. While the personal reasons for executing a Last Will and Testament may vary for each individual, there are several basic reasons to execute this important document.

First, the Last Will and Testament provides you with the ability to direct what happens to your property after your death. A “will” has been defined as a voluntary disposition of property, in a mode recognized by law, to take effect after your death. If you die without a valid Last Will and Testament, your property will pass to your family by intestate succession. Intestate succession is the method of distributing your property pursuant to the intestacy statute enacted by the General Assembly of Tennessee. This method may result in a distribution of your property other than the manner in which you had planned.

One example of intestate succession yielding unintended results occurs when a person dies without a Last Will and Testament and leaves behind a spouse and two children. Under the intestate succession formula, the spouse would only receive a one-third (1/3) interest in the estate of the deceased person, and the two children would each receive a one-third (1/3) interest in the property. Although the deceased person may have intended that the spouse receive all of his or her estate, these intentions cannot be carried out without a will. State law would control the distribution of the property. A properly drafted Last Will and Testament would have permitted this person to ensure that the spouse was provided for.

Second, the Last Will and Testament provides you with the ability to choose the individual you want to manage your estate when you die. This personal representative is commonly referred to as an Executor or Executrix. An Executor or Executrix is the person appointed by you in your Last Will and Testament to carry out the directions and requests you put in your will and dispose of your property according to your wishes. If you die without a Last Will and Testament, the probate court will select an “Administrator” to distribute your property pursuant to the intestacy statute. In this case, you would have no control over the selection of the individual that will manage your estate.

Third, the Last Will and Testament provides you with the ability to make specific bequests, or gifts. You can designate specific items or property that you want a particular individual to have. Without a Last Will and Testament, you have no control over how your property will be distributed. The property will simply be divided pursuant to applicable law. As a result, you can not leave specific items or property to children, friends, or your favorite charity.

Finally (and most importantly for some), a Last Will and Testament allows you to designate a
guardian for your children. Tennessee law provides that, once both parents of a child are deceased, the person designated by a child’s parents in a will are given highest priority for appointment as guardian of a child. Without a Last Will and Testament to provide direction to the court, the care and custody of your child could be determined by a judge after contested litigation.