Tennessee Estate Planning Legal Questions

You have a question that is faced by many people.  There is not a single answer that fits everyone because based upon the size of your estate your may be subject to significant State (for 2015) and Federal Inheritance Taxes.  Also, you would want to consider Wills to make sure that you child receives your assets after both of you to pass away.  This step is even more important because among couples, the parties want everything to go to each other and then a child, but without a Will, this is not what would happen. As another matter, while you and your husband are still alive, you would want to consider having prepared Powers of Attorney (one for Healthcare and one for Financial Decisions). This answer is for general informational purposes only and is not intended to constitute legal advice or a recommended course of action in any given situation. This answer is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature with respect to the issues discussed herein. The recipient is encouraged to consult independent counsel before making any decisions or taking any action concerning the matters in this answer. This answer does not create an attorney-client relationship between the author (John R. LaBar)/Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. and the recipient.... Read More

Up until 2012, Tennessee was one of 3 remaining states which had a gift tax which imposed limits on how much an individual could give away each year.  Your questions has a lot of different issues in that the transfer of real estate is normally accomplished by quitclaim deed to avoid paying Tennessee's 37.5 cents per $100 transfer tax.  However, transferring real property also would involve determining if this is the best route because the property may be appreciated (subject to capital gains tax upon sale at 15%) and therefore the best route may be to hold onto the property until your passing to receive a step-up in basis. This answer is for general informational purposes only and is not intended to constitute legal advice or a recommended course of action in any given situation. This answer is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature with respect to the issues discussed herein. The recipient is encouraged to consult independent counsel before making any decisions or taking any action concerning the matters in this answer. This answer does not create an attorney-client relationship between the author (John R. LaBar)/Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. and the recipient.... Read More

From your question is seems that your mother originally owned her home, but has conveyed the property to your cousin (her niece) while retaining a life estate.  This arrangement means that your mother is entitled to the use of the property for the remainder of her natural life (whether or not she actually lives on the property [e.g. she could rent it]).  At your mom's passing, the remainder interest, which is the interest your cousin has while you mother is alive, will pass to your cousin.   John This answer is for general informational purposes only and is not intended to constitute legal advice or a recommended course of action in any given situation. This answer is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature with respect to the issues discussed herein. The recipient is encouraged to consult independent counsel before making any decisions or taking any action concerning the matters in this answer. This answer does not create an attorney-client relationship between the author (John R. LaBar)/Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. and the recipient.... Read More

This seems like a very simple question, but actually has several parts.  If the person executing the Power of Attorney is still competent, without any abuse by the Attorney-in-Fact, then it can be as simple as getting a new Power of Attorney (Healthcare or Financial) executed.  However, if the person executign the Power of Attorney is no longer competent, then in such an event, it may be necessary to seek a court supervised conservatorship. There is also the issue of abuse of the Power of Attorney.  If the Attorney-in-Fact has taken some steps that are against the wishes of the principal, then in such an event, it may be necessary to have a Revocation of Power of Attorney prepared and recorded. This answer is for general informational purposes only and is not intended to constitute legal advice or a recommended course of action in any given situation. This answer is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature with respect to the issues discussed herein. The recipient is encouraged to consult independent counsel before making any decisions or taking any action concerning the matters in this answer. This answer does not create an attorney-client relationship between the author (John R. LaBar)/Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. and the recipient.... Read More

  Yes, your designation on an Insurance beneficiary form and on a 401K designation will control.  You Last Will and Testament will only control over your probate assets (e.g. those assets which you own after you death).  Your insurance policy is a contract right and your beneficiary will control.  Even if you get divorced, a designation to your now ex-wife would control.  The same is true with your 401K.  Additionally, with your 401K, there is a form that most companies will require your wife to sign in order to remove her as the beneficiary (even if she is not named by you).  And, each company generally has their own form. A review of your beneficiaries on your insurance policies and 401K is part of a comprehensive estate plan (just like getting Powers of Attorney and your Will prepared). This answer is for general informational purposes only and is not intended to constitute legal advice or a recommended course of action in any given situation. This answer is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature with respect to the issues discussed herein. The recipient is encouraged to consult independent counsel before making any decisions or taking any action concerning the matters in this answer. This answer does not create an attorney-client relationship between the author (John R. LaBar)/Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. and the recipient.... Read More

  This question has several facets.  First, under Tennessee law, you are not required to make any provision in your Will for a child.  So, the first step is to make sure that your Last Will and Testament properly reflects that you do not wish to include the "problem" child.  This will take care of the legal ownership of your home after you pass.  As to before you pass, you have the right to prohibit the child's entry onto your property and to enforce this right by contacting the legal authorities and even going further and seeking a restraining order.  After you pass, I mentioned that your Will will control the legal ownership.  However, the estate administration process is the process whereby your Executor/Executrix gets court authority to administer your estate (essentially taking all steps to make sure your assets get to where your Will says you wish them to go).   Your Executor/Executrix will be the one who can control the property and ban their "problem" sibling.  They will also have the authority to contact the cops and seek a restraining order if necessary. One final area is before you pass, but if you would either be in a come or other not competent.  In this case, you would also need a Power of Attorney for Healthcare and a Durable Power of Attorney.  Your attorney-in-fact would then have the power to keep your "problem" child off of the property. John This answer is for general informational purposes only and is not intended to constitute legal advice or a recommended course of action in any given situation. This answer is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature with respect to the issues discussed herein. The recipient is encouraged to consult independent counsel before making any decisions or taking any action concerning the matters in this answer. This answer does not create an attorney-client relationship between the author (John R. LaBar)/Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. and the recipient.... Read More

You have a very complicated question with alot of issues.  First, the State in which you are domiciled will generally control a person's estate, which means that you and your husband's estates would be controlled by NC law (where you live full time, where you vote, where you work and where you have a driver's license all go into this determination, but I started with the phrase we live in NC).  Outside of that issue, my answer is tempered to assume that NC law is the same as Tennessee law.  First, let's talk about what assets are controlled by a Will (probate assets) and what assets are controlled by a beneficiary (nonprobate).  Anything with a beneficiary would be a nonprobate asset (stocks, life insurance with a beneficiary) and would upon the second of someone's passing, go to the beneficiary named no matter what the person may claim.  So, the beneficiary designation is the end of question of where these assets go.  As to the house, if you and your husband bought the house when you were married, and both of your names were on it, then you would be considered tenants by the entireties and would upon his passing own 100% of the house because it would pass as a nonprobate asset.  If he is the only name on the deed, then it is controlled by his Will.  I have said "controlled by his Will" throughout because question started with can he leave the asset to who he wishes and leave you out.  The answer is yes and no.  First, he can prepare a Will and specify that you do not get anything.  However, most states (TN again being my area of practice) will allow you (there is a deadline to take this step) to elect against the Will and to take certain statutory rights (generally, a State wants to require that a spouse is taken care of) so you would get to be treated as an heir.  Second, in your case, if your husband does not have a Will, his estate will be "intestate" and the State sets his heirs, which are his children and his spouse together.  But, if he has not children, by not having a Will, you would be his sole heir.  Overall, there is a fundamental difference between what each of your say you wish to happen and what the law will prescribe.  This answer is for general informational purposes only and is not intended to constitute legal advice or a recommended course of action in any given situation. This answer is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature with respect to the issues discussed herein. The recipient is encouraged to consult independent counsel before making any decisions or taking any action concerning the matters in this answer. This answer does not create an attorney-client relationship between the author (John R. LaBar)/Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. and the recipient.... Read More

 The answer to this question depends upon who may be filing the lawsuit.  If the suit is brought in the name of the heirs, it may be possible to avoid an estate administration.   However, the opening of the estate is a step that is frequently taken to simply disbursement of the insurance proceeds.   This answer is for general informational purposes only and is not intended to constitute legal advice or a recommended course of action in any given situation. This answer is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature with respect to the issues discussed herein. The recipient is encouraged to consult independent counsel before making any decisions or taking any action concerning the matters in this answer. This answer does not create an attorney-client relationship between the author (John R. LaBar)/Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. and the recipient.... Read More

First, if your husband has a Will, then the terms of his Will will control.  Additionally, while he may want to leave some items to his grown children, he is not required to leave then anything specific, or even, anything at all.  Thus, if your husband has a Will and leaves you the home, then this would resolve your concerns.  If your husband has a Will and does not want to leave you the home, you will still have some rights as a surviving spouse, to make an elective share of his estate. If you husband does not have a Will, then his real estate will descend automatically upon his passing to his intestate heirs, which will be you and his children.  And, then, the children (or any of them individually) would have the right to seek to have the property sold. The best course is to discuss your husband's estate wishes with him and then see an attorney to have a Will (and to the extent he does not already have one) and Powers of Attorney prepared for him. This answer is for general informational purposes only and is not intended to constitute legal advice or a recommended course of action in any given situation. This answer is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature with respect to the issues discussed herein. The recipient is encouraged to consult independent counsel before making any decisions or taking any action concerning the matters in this answer. This answer does not create an attorney-client relationship between the author (John R. LaBar)/Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. and the recipient.... Read More

       The life estate of an individual immediately terminates upon the death of the individual.  The owner of the remainder interest, you, will then own the property without any court action.  You will also have the right of immediate possession of the premises, subject to the rights of any tenants.  As to tenants without a written lease, Tennessee law will presume a lease for a reasonable period of time, for instance 30 days, for the tenants to move out.  During the term of the life estate, the life tenant is required to make repairs for minor issues and to not commit waste.  Destroying the barn in is violation of these duties and would give you the right to file a lawsuit to restrain your cousin from destroying the barn.  This answer is for general informational purposes only and is not intended to constitute legal advice or a recommended course of action in any given situation. This answer is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature with respect to the issues discussed herein. The recipient is encouraged to consult independent counsel before making any decisions or taking any action concerning the matters in this answer. This answer does not create an attorney-client relationship between the author (John R. LaBar)/Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. and the recipient.... Read More

I am unclear from the question as to what is meant by "pay against the property".  However, as some general guidelines, a life tenant is generally responsible for pay the real estate taxes against the property and to maintain the property (mowing, cleaning, etc.).  As to major repairs which may have a useful life longer than the life tenant (new roof, etc.) there should be a split between the life tenant and the owners of the remainder interest.  However, the apportionment of this amount is generally a matter of dispute.  Sometimes it is helpful to use Tennessee's mortality tables to compare the statistical interest of the life tenant (how old they are versus how long they are predicted to live) to the remainder owners in order to determine the split. This answer is for general informational purposes only and is not intended to constitute legal advice or a recommended course of action in any given situation. This answer is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature with respect to the issues discussed herein. The recipient is encouraged to consult independent counsel before making any decisions or taking any action concerning the matters in this answer. This answer does not create an attorney-client relationship between the author (John R. LaBar)/Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. and the recipient.... Read More