Tuesday, 21 March 2017
One of the main issues that I see with a Last Will and Testament that was created online or not executed in front of an attorney is that the witness requirements of Tennessee law are not met. In Tennessee, if those requirements are not met the will is not valid. You have worked to create a meaningless document and if you were to pass away before fixing this, your estate would fall under the laws of intestacy (the laws that apply when someone dies without a Will). This is definitely something I want you to avoid.
So what are those requirements? T.C.A. § 32-1-104 provides that a will, other than a holographic or nuncupative will, must be signed by the testator (the person making the will) and two witnesses. There are specific requirements within the code spelling out what the testator must signify to the witnesses in this process. T.C.A. § 32-1-103 further clarifies that the witnesses cannot be “interested” persons, meaning they must not have any interest in the testator’s estate. Also, not only must the witnesses and testator sign the will, they must all do so in the presence of each other. Tennessee requires strict compliance with these rules. If any part is not met, the will is invalid.
The Tennessee legislature recently amended the witness laws to allow signatures on a specific type of affidavit that is often attached to the will to count as the witness signature requirement. However, this is a very minor exception because the following must be true about that particular will and affidavit: 1) the affidavit meets the requirements of T.C.A. § 32-2-110, 2) the affidavit also meets the witness requirements listed in the previous paragraph, and 3) the will was executed prior to July 1, 2016. As you can tell, this minor exception will not apply to most wills and will definitely not apply to any new wills being created.
It is important to remember that these requirements apply only to traditional, type written wills. Stay tuned for my next couple of blog post where I will discuss all of the requirements involved for a nuncupative or holographic will to be valid.
The last thing anyone wants is to believe that an estate plan is secure, when in fact the will you’ve created is invalid due to a technical detail. Should Tressler & Associates, PLLC, have the opportunity to prepare your will, we take care to ensure that all witness requirements are met and even provide the witnesses for you at the signing.
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Posted on 03/21/2017 2:51 PM by Erika Piland
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