The Importance of Creating a Last Will and Testament

Here’s the scenario (borrowed from a real life client of mine (with permission of course)):

You and your 3 siblings just got the phone call that you’ve been dreading for quite some time now. Your mother just passed away.

Despite every fiber of your soul telling you that this is a good thing, you can’t help feeling a bit lost.  “She was in a lot of pain and discomfort,” you think to yourself.  “She’s in a better place now.”

Almost immediately you start getting phone calls and unexpected visitors offering their thoughts and prayers.  The support from the community seems to ease the pain.

At some point, however, you’re going to have to start going through mom’s things. This in and of itself seems like an impossible task.  Perhaps your siblings can offer a helping hand.

You pick up the phone and give them a call.  Mainly you just want to see how they’re holding up.  But you’re also looking for help.  “There’s just no way I can go through all of mom’s stuff by myself,” you think.  “Surely my siblings will offer to help.”

But, to your extreme disappointment, none of your siblings turn out to be the “helping hand” you’d hoped for. Instead, they lecture you on why certain property of your mother’s belongs to them.

One thing leads to another, you try your best to rationally resolve the conflict, but….no luck. Your siblings are just, well, hard-headed. What should have been a calm and rational discussion has turned into a screaming match.  You’re at the end of your rope.  What can you/should you do????

_____________________________

To best answer this question, I think we should analyze it under two separate alternatives.  First, lets see what would happen if the mother died without a will.  Then, lets see what would happen if then mother died with a will.

But first things first….we need to define a few terms.

  1. The Estate:  When a person dies, everything that person owned at the moment of death will become part of his/her estate.  A person’s estate is basically an extension of the person.  It can sue or be sued, it can collect debt or pay off debt, etc.
  2. Testate Estate:  When a person dies with a will their estate will be known as a “Testate Estate.”
  3. Intestate Estate:  When a person dies without a will their estate will be known as an “Intestate Estate.”
  4. Testator/Testatrix:  The creator of a Last Will and Testament is known as the Testator (male) or Testatrix (female).
  5. Beneficiary:  You have to give your property to some person, place, or thing in your Last Will and Testament.  That person, place, or thing is known as the beneficiary (or beneficiaries, if there’s more than one).
  6. Executor/Executrix: This is the person, appointed by you, who is responsible for seeing that your Last Will and Testament is followed.  They will inventory your estate, notify potential creditors and beneficiaries, distribute your property pursuant to the terms of your Last Will and Testament. So forth and so on…

Ok.  Now that we understand our terms, lets see what would happen.

Mom Dies Without A Will

If mom died with an intestate estate, the law of the state of Tennessee will determine how her estate is to be distributed.  In the above scenario, the 4 siblings would each get 1/4 of their mother’s estate. “Doesn’t sound to bad,” you may be thinking.  Well, hold on a sec.

If everybody is getting along and not claiming ownership of the same property, then yeah, no problem.  But that’s rarely the case.  Most likely each sibling will have their own idea as to how mom’s estate should be distributed. “I spent more time with her before she died.”  “She told me that she wanted me to have the living room furniture.” You can imagine how the conversations might progress.

In this scenario, where family members can’t decide who gets what, the only option is to let the Court decide it for them. This typically results in the Court ordering that all of mom’s property is to be sold and the profits split amongst the children.

As a consequence, the precious family heirlooms and priceless personal property your mother owned could be up for auction and go to the highest bidder.  You and your siblings are left angry, upset, and frustrated.

Not a good result….right?

Let’s examine the other alternative….

Mom Dies With a Will

If mom died with a testate estate, the person(s) she named as executor and/or executrix will distribute her property pursuant to the terms of her will.  It’s as if she were giving the property away during her life.

In this alternative, there will be no question what mom’s intentions were.  If she wanted the living room furniture to go to her only daughter, that’s who will get it.  If she wanted the house and land to go to the middle brother, he’s going to get it…..because that’s what mom clearly intended.

There’s simply no room for argument. “But if someone ends up with something they didn’t want, won’t they still be angry?”  Well, potentially.  But think of it this way….they’ll be angry with mom and not everybody else.

The family will stay intact.  In this alternative, because there is no room for argument as to who gets what, there will be more time to morn and heal.  And that’s what should be happening after the loss of a loved one.  Morning and healing….not arguing and screaming.

Plus, those precious family heirlooms and priceless pieces of personal property wont end up in the hands of strangers.  They may not go to you, but at least they stay in the family.

 

Give it some thought….

Good Legal Health.

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