Not having a will in place is an all-too-common occurrence in the United States. A study by the American Association of Retired People (AARP) revealed that 60 percent of people have not put their wishes in writing. The lack of proper estate planning can have significant implications on several fronts.
Those implications might include issues that come up when a person is still alive, including medical and financial decision-making if they become mentally incapacitated. The implications of not having a will absolutely will come up when it comes to the distribution of assets, including the family home. What happens to a house when the owner dies without a will may be something quite different than what that owner might have wished.
When a person dies without a will, they are said to have died intestate. Tennessee’s intestacy laws have a process of succession. The first point to establish is what type of property is being dealt with. Tennessee law categorizes property three different ways…
- Trust Property–this is property that was placed in a trust and has an established beneficiary. It will not be impacted by the intestacy process
- Joint Property–this is owned with someone else and will pass to the other owner(s).
- Exclusive Property–property that is owned exclusively by the one who passed away.
For our purposes here, we are talking about exclusive property. In the case of joint property, there is still at least one owner alive. And while it’s possible to have set up a trust, but not a will, the Tennessee estate lawyer who set up the trust almost surely impressed upon their client the need for a will. So, for the sake of discussion, we’ll just assume that this is a house where no one really knows exactly what the deceased wanted to do with it.
INTESTACY SUCCESSION IN TENNESSEE
The basics of intestacy succession in Tennessee are as follows…
- If the person was married and the spouse is still alive, the spouse is now the owner of the house.
- If the spouse has passed on, but the children are still alive, the kids equally share the house. So, if there are three kids, they can sell the house, and each keep one-third of the money. Children who were legally adopted are treated the same under the law as biological children.
- If the spouse and adult children are both alive, the value of the house is shared among them. Regardless of how many kids there might be, the spouse’s share must at least be one-third of the value.
Now consider the following scenarios…
- The spouses had three children. One of the kids has passed away. Does that mean the spouse and other two kids will simply split the value of the house in accordance to the principles above? Not if the deceased child had children of their own. In that case, the grandchildren inherit the share that would otherwise go to their deceased parent.
- The deceased married someone who already had children. Stepchildren are not in line for a share of any part of the estate, the house included. The deceased must have legally adopted them for any inheritance rights to exist.
- The deceased was never married but has children from a previous relationship. Children always have inheritance rights from their mother, as maternity was established by the hospital at the time of birth. If the deceased was the father, his children are eligible to inherit the house, but proof of paternity must be provided.
- Perhaps the deceased gave up a child for adoption. Presuming that child was legally adopted by another family, they do not inherit the house. If the child stayed in the system and never legally joined another family, then they can make their claim to the house with proof of paternity.
- What if a couple had children and then had their marriage annulled by the state of Tennessee? An annulment is quite different from a divorce, in that a divorce ends a valid marriage, while an annulment declares the marriage to be null and void. What does that mean for the kids’ inheritance rights? In this case, nothing. They can inherit normally.
- While intestacy laws require stepchildren to be adopted, they are less stringent when it comes to stepsiblings. Perhaps the deceased’s mother remarried, and they (the deceased) came into a family with three siblings. These stepsiblings, or “half relatives,” inherit the same as if they were biological siblings.
- Let’s say the deceased’s daughter is pregnant at the time of the death. The child will be eligible to inherit when the intestacy process gets to the grandchildren.
- Immigration status is not a factor in intestacy laws.
What if the deceased has no spouse or children? Then who gets the house? The line of succession then goes as follows…
- Any surviving parents are first in line
- Surviving siblings are second in line
- If the deceased had siblings that have since passed away themselves, the nieces and nephews come next in line, with equal shares.
- Next in line are second cousins, then third cousins and so on down the line. The state of Tennessee will seek these out if they are unaware of their connection to the deceased.
- If, after all of this, there is still no heir, then the house will go to the State of Tennessee.
Here’s a few more scenarios that could end up being serious controversies…
- The deceased died in a car accident. They were unmarried with no children. They were in the car with their brother, who had three children. Both were killed. Do the brother’s children inherit when the sequence of the intestacy process gets to nieces and nephews? That depends. The deceased must have outlived their brother by 120 hours (5 days). If not, the nieces and nephews are cut out of the line of succession due to the fact their connection to the deceased is also passed on.
- Three children are in line to inherit the house. Let’s say the oldest sibling bought a house for the youngest and has not been paid back. Can the oldest sibling collect on their debt through the sale of the house? It depends. The siblings must have agreed to this in writing for the state of Tennessee to enforce it.
- What if one of the children attempts to kill their lone remaining parent? Let’s assume it’s proven that the attempt was intentional. The child loses their inheritance rights. Although if attempted murder was proven, their inheritance rights are really the least of their problems. They’ll need a criminal defense lawyer.
Those are some very dramatic examples. But this list and even just a handful of variations indicate how important it is that someone put their wishes into writing. There are any number of real-life examples where what the deceased almost certainly wanted cannot be put into practice because of the lack of a will.
For example, an aging widower lives with his adult stepdaughter. He owns the house. The two have always enjoyed a close relationship since he married her mother. He became the father she never had. Unless that relationship was codified by a legal adoption, she will not get the house when he dies. That is just one hypothetical of an everyday situation that is not addressed by intestacy laws in Tennessee…but could be with a last will and testament.
Not all your assets will be impacted by intestacy. A life insurance policy would have a designated beneficiary in place. So too, would any retirement accounts, like a 401(k). But your home did not automatically have a beneficiary. If you don’t spell it out, the state must follow its own procedures as outlined above.
Casey, Simmons & Bryant, PLLC can make sure that your final wishes are spelled out and then your assets go where you want them to, not where the state of Tennessee’s generic processes say they should go. Call us at (731) 256-0023 or send us a message online. We’ll get a consultation set up and put your legacy on firm legal foundation.