Main considerations when drafting a simple will

By Jedidiah McKeehan

A large portion of Tennesseans do not have a will that dictates who gets what when they die, they simply have not gone to the trouble of ever making a will.  When this happens, the state’s laws of intestate succession, aka who gets what when there is no will, dictate which relatives of the deceased person get their possessions, property and money.

Now, if someone does not really care who gets their possessions when they die, they may not want to be bothered or troubled by drafting a will.  However, if you want to be certain the people you want get what you want them to get, you need to have a will in place.  It doesn’t have to be complicated.  Further, there are some common misconceptions about who gets what when you die.  Did you know, that if you die while married, your spouse does not automatically get everything you own?  That itself may be a reason to draft a will.

Here are three things you should consider when drafting a simple will:

First, determine who should receive what assets.  Seems obvious, right?

When someone comes to me to draft a will, I assume that they want to leave everything they own to their spouse first, then if they have no spouse, or their spouse is already deceased, that they want to split the remaining assets evenly among their children. This may not be the case though.  You may want to make a specific gift to an uncle or aunt, or give an heirloom to a specific child, these are all things that need to be considered and articulated in your will.

Second, determine what happens to minor children.

If you have minor children, an essential consideration to address would be, who will take care of the children until the age of majority after you pass?  Many people have relatives that they just do not quite trust and you are not really sure if they will try to say they are the best people to take care of your children if you pass.  Better to have in writing in your will with whom you want your children to live after you pass.  This goes without saying, make sure you talk to whoever you pick ahead of time and make sure they are willing to take on such an enormous, although unlikely to occur, obligation.

Another thing to address is at what age would the minor children inherit the assets left to them in the will.  Because they are minors, they are not legally allowed to be given monies from your estate until they turn 18 at the very earliest.  Do you want them to receive it at age 18, 21, 25, 30, or another determined age? And who will manage the assets until the time in which the child is able to claim it?  Who will watch over it?  I usually recommend that the people caring for your children also manage their money until they receive it, but it does not have to be the same person/people.

Third, determine who will watch over your estate.

The third important consideration is, who will be the executor of your estate? Typically, it is a spouse. But it is wise to have a backup executor in case your spouse dies before you or you die at the same time.  I usually recommend that people pick someone “responsible and good with money.”  They will have to deal with court proceedings, executing documents, bank accounts, etc.  They can always hire an attorney to help them (and I recommend this), but still good to have someone you trust in this role.

To recap, the three main considerations to think about when drafting a will are: who are you going to leave your stuff to, who is going to take care of minor children, and who is going to be the executor of your estate?

Of course, you may have many other considerations in regard to your will, but for most Tennesseans, this simple list is all that you need to answer, provide to an attorney, and get in to the form of a will, in order to have peace of mind if the unthinkable happens.

Jedidiah McKeehan is an attorney practicing in Knox County and surrounding counties.  He works in many areas, including criminal, personal injury, landlord-tenant, probate, and estate planning. Visit attorney-knoxville.com for more information about this legal issue and other legal issues.

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