Drafting Wills in Memphis: What are my children’s rights?
Upon reading a California lawyer’s response of “It depends… on the state” to a client’s question concerning their obligation to provide for their children in their wills, our Memphis Estate Planning Lawyers wanted to give Memphis residents the requirements in Tennessee.
If you pass without a will or Intestate…
Your children will share equally or per stirpes, whatever part of your estate that does not pass to your surviving spouse. Your spouse is entitled 1] share equal to the children OR 2] 1/3 of the net estate, whichever is greater. If your child is deceased, then their children shall share that share equally.
EXAMPLE: You pass and are survived by your spouse, 2 of your 3 children, and the pre-deceased child has 2 children (your grandchildren)
- Your spouse can take 1/4 OR 1/3 share, FIRST
- Your surviving children will each take 1/4 share of remaining estate
- Your surviving grandchildren of your pre-deceased child will each take 1/8 of remaining estate
If you pass with a will or Testate…
Your children will take whatever share you chose to give them. You may specifically disinherit them. If you accidentally omit them, by either forgetting to update your will or just not updating your will in time, they can inherit their intestate share. This means unless you intentionally remove leave them out of the will by: 1] omitting them intentionally to disinherit or 2] making a gift or transfer during your life which was intended to replace receiving anything by will, your children will take whatever share they would have gotten had you not had a will, regardless of what other provisions you made for other children.
They are not entitled to the same elective share benefits of your surviving spouse.
EXAMPLE:
- Child was born after you had written your will, but you forgot to update it or passed away too soon to update… child may take intestate share
- You gave a family heirloom or paid a significant espense and made the clear and witnessed statements or actually wrote it into the will, that this was their “inheritance” and they would not received anything in the will, … child will NOT received intestate share.
This benefit does not apply to grandchildren. So if you omitted a child by mistake, and they predeceased you, their children will NOT be able to inherit the intestate share, and will inherit nothing from you.
How we can help to make your wishes clear…
While there are limited laws on the drafting of provisions of your will, without a complete understanding of how all these laws work together and without continual updates, your will may fall short of your wishes. Count on our Memphis Estate Planning Lawyers to guide you through all the ramifications of your drafting decisions and to suggest provisions that can allow for relief from mistakes and prevent misinterpretations of your final testament.
Source of post: California Estate Planning Blog and Tenn. Code Ann. §31-2-101 , §32-3-103 , and §31-4-101
