Every person should have a will so as to ensure that his or her wishes will be carried out after death. Unfortunately, just telling a family member, “I want Uncle John to have my antique radio” does not mean that will happen unless a will exists. If a person dies intestate (without a will) there is a specific statutory scheme which dictates who will inherit. Often the statutory scheme is not what the decedent would have wanted.
Probate is a process whereby a will is entered into probate and administered. Assets are gathered, debts are paid, and the remainder is distributed according to the will. Occasionally, the validity of a will is contested. The person contesting the will must prove that the testator (deceased person) was not mentally competent or was the victim of undue influence. If a person dies without a will, then a petition to probate an intestate estate is filed. The court will appoint an administrator who gathers the assets, pays the debts, and then disburses whatever remains to the heirs at law. There is a statute which sets forth the share of the decedent’s estate which each heir at law is entitled to receive. If the decedent is age 55 or older, a Tenn Care release is required. Probate generally is not a long or complicated process.
If the decedent left a will which the decedent’s surviving spouse does not believe is fair, the surviving spouse can dissent from the will and receive a percentage of the estate, a year’s support, the homestead exemption, a vehicle, and household furnishings. The percentage received is determined by the number of years a husband and wife were married.
If an adult is incompetent and does not have a durable power of attorney, then a conservator should be appointed. Conservatorships are generally for the person and the estate (money, property, and other assets) of the disabled individual. A petition is filed, the judge appoints an attorney to serve as the Guardian ad Litem. The Guardian ad Litem investigates whether or not the proposed Ward is really in need of a conservator. A hearing is scheduled. Generally, conservatorship petitions are granted. Whomever is appointed (usually a family member) must make an annual accounting to the court and prepare a status report to advise the court of the Ward’s condition. If there is no family member willing to serve as the conservator, then the judge will appoint a non-family member. In addition to preparing annual accountings and status reports, the conservator must prepare a property management plan which is submitted to the judge for approval. The property management plan shows how the Ward’s assets will be used. It will reflect the Ward’s customary monthly living expenses. A conservatorship of the person allows the conservator to determine the living arrangements of the Ward and to make health care decisions.
Powers of Attorney
There are several types of powers of attorney: General, Limited, Durable, and Health Care. A General Power of Attorney allows the holder (attorney-in-fact) to conduct any and all business that the grantor could conduct, such as write checks, sign tax returns, buy and sell property, sue someone, etc. It is revocable. A Limited Power of Attorney is for a limited purpose and is frequently for a limited time. A Durable Power of Attorney for Health Care is limited to health care decisions. A Durable Power of Attorney survives the incompetence of the grantor. So, if grandmother gives grandson a durable power of attorney and the grandmother becomes senile, then the durable power of attorney is still valid. It is recommended that everyone have durable power of attorney and durable power of attorney for health care. Once a person dies, the durable power of attorney is extinguished.
Guardianships are for minors. As in conservatorships, a guardianship may be for the person or the estate or both of the minor. If the minor inherits a significant sum of money (unless it is held in trust) the guardianship must be created. Annual status reports are required. The minor’s monies cannot be spent unless the judge approves the expenditures. If both parents of a child have died, the Court will establish a guardianship of the person of the child (usually a relative). The guardian will have the authority to seek medical treatment for the child, enroll the child in school, and act as a parent in all respects.