After you sign your Tennessee will

What signing did

A will does nothing during your life. It names the personal representative who settles the estate, says who receives the property that passes under it, and may create trusts for those who should not receive property outright. Until your death you may revoke it or replace it by the methods the statute lists (Tenn. Code Ann. § 32-1-201), and depositing it with the court does not change that (Tenn. Code Ann. § 32-1-112(e)(1)).

It reaches only the property that passes by will: what you own in your own name at death. Property held with a right of survivorship, property passing by a beneficiary designation or a payable-on-death or transfer-on-death registration, and property titled to a funded trust pass outside it, to whoever the title or the designation names. A plan is the will and those titles and designations read together.

Nothing is filed while you live. The court's deposit is optional (Tenn. Code Ann. § 32-1-112), and the will is proved in the county's probate court only after the death (Tenn. Code Ann. § 16-16-201).

How it was signed, and the self-proving affidavit

A will other than a holographic or nuncupative will is executed by the signatures of the testator and at least two witnesses. The testator signifies to the attesting witnesses that the instrument is the testator's will and signs it, acknowledges a signature already made, or has someone else sign the testator's name at the testator's direction and in the testator's presence — in each case in the presence of two or more attesting witnesses; the witnesses sign in the testator's presence and in the presence of each other (Tenn. Code Ann. § 32-1-104(a)).

At the testator's request — or, after the death, the executor's or an interested person's — any or all of the attesting witnesses may sign an affidavit before an officer authorized to administer oaths, stating the facts they would testify to in court to prove the will. It is written on the will or, where that is impracticable, on a paper attached to it, and the probate court accepts it, when the will is not contested, as if the testimony had been taken in court (Tenn. Code Ann. § 32-2-110). A will without it can still be proved, by the witnesses themselves; the affidavit saves finding them.

The original, and where it lives

A will is proved from its original, so where the original lives matters as much as what it says. A living testator, or someone for the testator, may deposit the will with the court exercising probate jurisdiction in the county where the testator lives, in a sealed wrapper endorsed with the testator's name, residence and identifying number and the date and person of delivery, where the clerk has a secure vault or safe; the court keeps it, issues a certificate of deposit and charges a $5 fee (Tenn. Code Ann. § 32-1-112(a)). During the testator's life it is delivered only to the testator or to a person the testator authorizes in a writing proved by a subscribing witness's oath (§ 32-1-112(b)); after the death the court opens it in open session and makes it public (§ 32-1-112(c)). The deposit is not a probate, and the testator may still revoke, amend, withdraw or replace the will (§ 32-1-112(e)(1)).

Whoever has the will at the death — a family member, a lawyer's office, a bank — mails or delivers the original to the personal representative it names as soon as they know of the death, with a photographic copy to the clerk of the probate court in the county of residence; where the representative is unknown, dead, ineligible or unwilling, where none is named, or where no estate needs administration, the original goes to the clerk (Tenn. Code Ann. § 32-1-113(a), (b)). A home safe that nobody can open, or a safe-deposit box nobody else may enter, delays all of that.

Tell the personal representative what to expect

The personal representative you named petitions the county's probate court — the chancery court unless a private act provides otherwise (Tenn. Code Ann. § 16-16-201) — on a verified petition with the statutory items and documents, including whether the decedent owned a business (Tenn. Code Ann. § 30-1-117). The work after letters runs on statutory clocks:

• The inventory within 60 days, and a copy of the will to each beneficiary — or the letters to each heir — with the statutory affidavit (Tenn. Code Ann. § 30-2-301).
• The notice to the Bureau of TennCare within 60 days of letters, and its release before the estate closes (Tenn. Code Ann. § 71-5-116).
• The clerk's published notice to creditors within 30 days after letters (Tenn. Code Ann. § 30-2-306(a)).
• An accounting within fifteen months of qualifying and annually after; where the will or the distributees of the residue waive accountings, a status report on the same schedule, and a statement in lieu of accounting at the close (Tenn. Code Ann. § 30-2-601).
• A personal representative may live outside Tennessee (Tenn. Code Ann. § 35-50-107(a)(2)(B)), after appointing the Secretary of State in writing as agent for service of process before acting (§ 35-50-107(b)(2)).

Keep it current, and know what changes it for you

A will or any part of it is revoked by a later will (other than a nuncupative will) that revokes it expressly or by inconsistency; by a document of revocation executed with an attested or a holographic will's formalities; by being burned, torn, cancelled, obliterated or destroyed with the intent of revoking it, by the testator or by another person in the testator's presence and at the testator's direction; or by both the testator's later marriage and the birth of a child — and a divorce or annulment of that later marriage does not revive the earlier will (Tenn. Code Ann. § 32-1-201).

A divorce or annulment after the will is signed revokes any disposition or appointment of property to the former spouse, any power of appointment conferred on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise; the property passes as if the former spouse had not survived, and a remarriage to the former spouse revives the revoked provisions (Tenn. Code Ann. § 32-1-202(a)–(c)). A decree of separation that leaves the marriage in place is not a divorce for this purpose (§ 32-1-202(d)), and no other change of circumstances revokes a will (§ 32-1-202(e)).

A change is made by a new will or a codicil executed with a will's formalities (Tenn. Code Ann. § 32-1-104). Marks on the signed original are not a safe way to change it: a cancellation or an obliteration made with the intent of revoking can revoke part of the will (Tenn. Code Ann. § 32-1-201(3)), and an addition takes effect only with a will's formalities. Review the will after a marriage, a divorce, a birth or a death, a move, or a large change in what you own.

What a will does not do

It does not avoid probate: property passing by will is administered through the county's probate court (Tenn. Code Ann. § 16-16-201). It does not reach property that passes by title or designation. It does not manage anything while you live: a durable power of attorney covers your property and an advance directive your health care (Tenn. Code Ann. § 68-11-1803) if you cannot act.

It does not override a surviving spouse's rights. A spouse who elects against the will may take an elective share figured on the net estate — the real property and the personal property passing under the will or by intestacy, net of secured debts, expenses and the allowances — by the length of the marriage (Tenn. Code Ann. § 31-4-101(a), (b)); a spouse who so elects is entitled as well to exempt property up to $50,000 and to a year's support allowance (Tenn. Code Ann. §§ 30-2-101(a), 30-2-102(a)), and the homestead is set apart as its own statute provides (Tenn. Code Ann. § 30-2-201).

A will beside a trust

A pour-over will leaves what is outside the trust to it. A trust existing on or executed after July 1, 2004 need not be executed with a will's formalities to dispose of property at death (Tenn. Code Ann. § 35-15-601). Where a will leaves the residue to a trustee, the personal representative sends the trustee a complete copy of the will and the trustee sends copies to the trust's beneficiaries (Tenn. Code Ann. § 30-2-301(b)). What pours over passes through the probate court first; what was funded during life does not.

What happens at your death: the estate's clocks

The clerk publishes the notice to creditors within 30 days after letters (Tenn. Code Ann. § 30-2-306(a)); a claim is barred unless filed within four months from the first publication, or within 60 days from the creditor's receipt of actual notice where that came later (Tenn. Code Ann. §§ 30-2-306(b), 30-2-307(a)); every claim is barred twelve months after the death, taxes excepted, with TennCare's own windows (Tenn. Code Ann. § 30-2-310). An action to set aside the probate of a will, or a petition to certify it for a will contest, is brought within two years from the order admitting it to probate, saving the rights of a person who was under eighteen or adjudicated incompetent when the cause accrued (Tenn. Code Ann. § 32-4-108).

An estate of $50,000 or less in personal property, with no real property, may proceed as a small estate on an affidavit filed 45 days after the death (Tenn. Code Ann. §§ 30-4-102, 30-4-103). Tennessee levies no inheritance or estate tax on a decedent who dies in 2016 or later (Tenn. Code Ann. § 67-8-318).

If you have not signed yet, or need a change

TrusteeClear does not draft wills, codicils or trusts and does not review yours; it organizes the record for the trustee's and the personal representative's side of the story. Questions about your own will, a change to it, or how it fits beside your titles and designations are for a licensed Tennessee attorney of your choosing.