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Focus on the Law: Basic Estate Planning

By Sharon Frankenberg,
Attorney at Law

Whether you are rich, poor or somewhere in between, you should make plans for the future.  It may be uncomfortable to think about but we may not always be healthy and all of us will die someday.  It is important to decide what should happen if we become unable to care for ourselves and what should happen to our assets when we pass away.

Tennessee residents can utilize four legal documents to create a basic estate plan.  The first document is the will.  In order to make a valid will, a person must be of sound mind and at least eighteen years of age.  The will must clearly show that person’s intent to dispose of his or her property after death. The will may be handwritten by the person making the will.  This kind of will is referred to as a “holographic” will.  All of the provisions of the will must be in the handwriting of the person making the will and after that person dies, the handwriting must be proven by the testimony of two witnesses familiar with the deceased’s handwriting.  A typed will must be signed in the presence of two witnesses who may not be related to the person signing the will nor may they be named as beneficiaries in the will.  Under Tennessee law, these witnesses may sign an affidavit attached to the will which eliminates the need to locate these witnesses to testify when the person who signed the will dies.  This is referred to as a “self-proving” will and is typically prepared by an attorney.  By having a will you can indicate your desires for the guardianship of your minor children if you should pass away.  Having a will can also save your loved ones the cost of having to post a performance bond and the trouble of having to file an inventory with the probate court after you die.

The second and third documents needed for a basic estate plan are two different durable powers of attorney.  A power of attorney is a legal document in which you authorize a competent person you trust to act as your agent or attorney.  It is “durable” because it will not be revoked if you later become disabled or incapacitated.  A durable power of attorney for health care purposes designates a person to make health care decisions on your behalf if you are unable to do so yourself.  The person you designate is referred to as your “attorney-in-fact.”  A durable power of attorney for business matters is also important because if you are unable to manage your finances (like pay your bills), your attorney-in-fact can make sure that whatever you need can be done on your behalf.

The last document you need for a basic estate plan is a living will.  This document establishes your wishes concerning your treatment if you are suffering from a terminal condition with no hope of recovery and where death is imminent.  Your feelings about cremation and organ donation are indicated.  Most importantly, your desires concerning the termination of artificial life-support systems will be documented so that they may be honored by your family, physician and health care facility.

There are many more complicated estate planning options including a variety of trusts and insurance policies.  Tax considerations may come into play. You may need more than just a basic estate plan.  If you need help, be sure to contact an attorney to review your individual needs.

 

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