Probate Vs. Trust

People often assume a husband or wife automatically inherits when a spouse dies without a will. In Tennessee, that is not always true. While a surviving spouse often does receive an intestate share, there are important situations where the answer is no. Whether a spouse inherits depends on the legal relationship, the timing of death, and whether the property even belongs to the probate estate. Tennessee's intestacy statute gives a surviving spouse a share in many cases, which is exactly why these exceptions matter. First, what is an intestate estate? An intestate estate exists when someone dies without a valid will, or when some probate property is not effectively disposed of by a will. Tennessee law then decides who inherits that probate property after debts and charges are paid. So when can the answer be no? 1. No, if the person is not legally a surviving spouse The law only gives intestate rights to a legal surviving spouse. If the marriage was invalid, ended in divorce before death, or otherwise does not qualify under Tennessee law, that person may have no intestate share at all. This is often one of the first issues examined in probate when inheritance rights are disputed. This is an inference from the statute's use of "surviving spouse," which means legal spouse status matters. 2. No, if the spouse did not survive the decedent by 120 hours Tennessee applies a 120-hour survival rule. If a spouse does not survive the decedent by at least 120 hours, that spouse is treated as having predeceased the decedent for intestate succession purposes. In plain terms, if both spouses die close in time and the surviving spouse lives less than five days longer, the answer may be no. 3. No, if the asset is not part of the intestate probate estate Not every asset passes by intestate succession. Some assets transfer outside probate, depending on title or beneficiary designation. That means a spouse may have no intestate claim to a specific asset because that asset never becomes part of the intestate estate in the first place. Probate administration materials from Tennessee courts distinguish estate administration from assets that pass by other mechanisms. 4. No, if the spouse is claiming more than Tennessee intestacy allows Sometimes the real question is not whether the spouse gets anything, but whether the spouse gets a particular house, bank account, or the entire estate. The answer can be no. Tennessee law provides that when the decedent leaves surviving issue, the spouse receives either one-third or a child's share, whichever is greater - not necessarily the whole estate. So if the question is, "Does the spouse get all of it?" the answer may be no. 5. No, if the claim involves rights that require separate, timely action Some spouse protections are separate from intestate inheritance, such as elective share and certain allowances. Those rights can be lost if they are not timely asserted. Tennessee authority shows these claims can be time-barred when filed too late. That does not erase every possible inheritance right, but it can make the answer no as to the specific relief requested. Why this distinction matters In Tennessee, the broad statement "a surviving spouse does not inherit from an intestate estate" is wrong. The more accurate statement is this: a surviving spouse can inherit, but not always, and not always from every asset. The answer turns on the probate estate, the family structure, and whether the spouse legally qualifies and survived long enough under Tennessee law. The bottom line Can a surviving spouse receive a share of an intestate estate in Tennessee? Often, yes. But in some cases, the answer is no. If the person is not legally a surviving spouse, fails the 120-hour survival rule, or is claiming property that does not pass through intestacy, Tennessee law may prevent that person from receiving an intestate share. If you are dealing with a probate dispute in Tennessee, getting clear legal advice early can make a major difference in determining whether a surviving spouse has rights in the estate at all.

Many people wonder if they really need a lawyer to create a will, or if they can simply write one themselves on paper. The short answer is yes, in some cases you can write your own will. However, whether it is valid and whether it will actually work the way you intend depends on how it is written and the laws in your state. Here is what you should know before deciding to create a will on your own. Is a Handwritten Will Legal? A handwritten will is often called a holographic will. Some states recognize holographic wills, while others do not. In states where they are allowed, the will usually must meet specific requirements. Common requirements include: The will must be written entirely in your own handwriting You must clearly state that the document is your will You must sign the will The will must show that you were of sound mind when writing it If your state does not recognize holographic wills, a handwritten will may not be valid at all, even if your intentions are clear. Does a Will Have to Be Typed? No, a will does not have to be typed. Both typed and handwritten wills can be valid, depending on state law. Typed wills usually require witnesses to be legally enforceable, while handwritten wills may or may not require witnesses depending on the state. Because rules vary, it is important to understand your local requirements before relying on a handwritten document. What Makes a Self-Written Will Risky? While writing your own will may seem simple, there are risks to consider. Common issues include: Unclear language that leads to disputes Forgetting to name an executor Not accounting for all assets Conflicting instructions Failing to meet witnessing or signing requirements Even small mistakes can cause delays, legal challenges, or cause a court to ignore parts of the will entirely. When Writing Your Own Will Might Be Enough A self-written will may be appropriate if: Your estate is very simple You have few assets You want everything to go to one person You do not have minor children You are comfortable researching your state laws In these cases, a basic will can be better than having no will at all. When You Should Consider Professional Help You should strongly consider legal help if: You own property in multiple states You have a blended family You want to set up trusts You have minor children and need guardianship plans You want to minimize taxes or avoid probate issues An improperly written will can cost your family far more in legal fees than the cost of getting it done correctly in the first place. Tips If You Decide to Write Your Own Will If you choose to write your own will, follow these tips: Use clear and simple language Clearly title the document as your last will and testament List your assets and beneficiaries clearly Name an executor you trust Follow your state’s signing and witness rules exactly Store the will in a safe place and tell someone where it is Final Thoughts Yes, you can write your own will on paper, but that does not always mean you should. While a handwritten will can be legally valid in some states, mistakes are easy to make and can create serious problems later. If your situation is anything beyond very simple, getting professional guidance can give you peace of mind and help ensure your wishes are honored exactly as you intend. 

When someone passes away, their estate often goes through probate. One of the most common concerns for families is debt. Many people worry that all debts must be paid immediately or that personal assets are automatically at risk. In reality, probate law provides important protections, including exemptions and strict rules for creditors. Understanding how debts are handled can help you protect estate assets and avoid paying more than required. Creditors Must File a Claim In probate, creditors do not get paid automatically. They must follow a formal process. After probate is opened, notice is given to known creditors and published publicly. Creditors then have a limited amount of time to file a claim against the estate. If a creditor fails to file a claim by the deadline, that debt is usually barred and does not have to be paid. This means: Old debts do not automatically survive death Family members are not responsible for filing claims on behalf of creditors Missed deadlines can eliminate otherwise valid debts One of the biggest mistakes families make is paying bills before knowing whether a creditor has properly filed a claim. The Inventory Determines What Can Be Used to Pay Debts Early in probate, the personal representative must file an inventory of the estate. This document lists all assets owned by the deceased at the time of death and their estimated values. The inventory is important because: Only probate assets listed in the inventory can generally be used to pay estate debts Some assets never become part of probate, such as certain joint accounts, payable-on-death accounts, or assets held in trust Exempt property is identified during this process If an asset is not part of the probate estate, creditors usually cannot reach it. Exempt Property Is Protected From Creditors Most states allow certain assets to be exempt from creditor claims. These exemptions are designed to protect surviving spouses and family members. Common examples of exempt property include: A portion of the homestead or primary residence Certain personal property like furniture, clothing, and vehicles up to a value limit Retirement accounts and life insurance proceeds payable to a beneficiary If property is exempt, it generally cannot be used to pay unsecured debts, even if creditors file timely claims. Not All Debts Are Treated the Same Even when creditors file claims correctly, debts are paid in a specific legal order. Administrative expenses, funeral costs, and taxes often have priority. Lower-priority debts may go unpaid if estate assets are insufficient. This is another reason families should never assume all debts must be paid in full. Get Guidance Before Paying Any Debts Probate rules are strict, and mistakes can be costly. Paying a debt too early or from the wrong asset can eliminate valuable protections that the law provides. Before paying any creditor: Confirm a valid claim was filed on time Review the probate inventory carefully Identify exempt and non-probate assets Understand debt priority rules Working with an experienced probate attorney can help ensure debts are handled correctly while preserving as much of the estate as possible for heirs.

How to Recognize Nursing Home Abuse and Navigate Probate for Your Family's Protection

What is a Healthcare Power of Attorney?

When you trust a nursing home to care for a loved one, you expect compassion & safety. Sadly, some residents experience neglect/abuse instead.

At Ashley Ownby, Attorney at Law, we listen & recommend a will, a trust, or both. We prepare documents, funding, & align beneficiary forms that comply with TN law.

At Ashley Ownby, we draft wills that fit your family and TN law. We coordinate beneficiary designations & advise when a trust or transfer-on-death deed may help.

Probate For Families