The catalyst for greater national attention to this issue was 29-year-old Brittany Maynard, a woman diagnosed with terminal brain cancer who moved from California to Oregon to end her life in 2014. Maynard chose Oregon because California had not yet passed its aid-in-dying law, and Oregon is one of just a few other states to allow terminally ill patients to legally end their lives.
Maynard’s decision and the resulting publicity spurred many state legislatures to introduce death with dignity bills. In Tennessee, the legislative push for aid in dying was led by longtime Tennessee politician John Jay Hooker, who was diagnosed with terminal cancer in January 2015 and died from the disease a year later. In March 2015 and again in 2017, legislators in the Tennessee General Assembly introduced aid-in-dying bills that failed to pass. Now in the 2024 session, lawmakers are considering another death with dignity bill, numbered HB1710 in the house of representatives and SB2258 in the state senate, that would allow terminally ill patients who meet certain requirements to request life-ending medication.
This article first clarifies some confusing language related to death with dignity laws and then sets out the basics of Tennessee’s proposed law.
“Death with dignity” and "medical aid in dying: are two of the most commonly accepted phrases describing the process by which a terminally ill person ingests prescribed medication to hasten death. Many people still think of this process as “assisted suicide” or “physician assisted suicide.” However, proponents of death with dignity argue that the term “suicide” doesn’t apply to terminally ill people who would prefer to live but, facing certain death within months, choose a more gentle way of dying. In fact, Tennessee’s proposed law states that terminating one’s life under the law is not suicide. (See SB2258, Section 68-11-2416 and HB1710, Section 68-11-2416.)
Increasingly, health organizations are turning away from the term “suicide” to describe a terminally ill patient’s choice to reduce the suffering of an inevitable death. The phrase “aid in dying” is becoming a more accepted way to refer to this process.
You may also see the phrase “right to die” used in place of “death with dignity” or "medical aid in dying." However, “right to die” is more accurately used in the context of directing one’s own medical care—that is, refusing life-sustaining treatment such as a respirator or feeding tubes when permanently unconscious or close to death. You can provide your own health care directions by completing a Tennessee advance health care directive. (See the end of this article for more information.)
Tennessee’s proposed law is modeled closely on Oregon’s Death With Dignity Act, which took effect in 1997. If Tennessee’s law passes, a patient requesting aid-in-dying medication will have to be:
A patient who meets the requirements above will be prescribed aid-in-dying medication only if:
To use the medication, the patient must be able to ingest it on their own. A doctor or other person who administers the lethal medication may face criminal charges.
You can read the full text of Tennessee's death with dignity bill on the Tennessee General Assembly’s website.
To find out more about the history and current status of medical aid in dying laws in the United States, visit the website of the Death With Dignity National Center.
For information about appointing a health care agent and making known your own wishes for medical care at the end of life, see the Living Wills & Medical Powers of Attorney section of Nolo.com.
Updated March 7, 2024
]]>Every state has some rules about who may serve as the executor of an estate that goes through probate. Here are the requirements in Tennessee.
In Tennessee, you cannot name:
(Tenn. Code § 40-20-115; Tenn. Sup. Ct. R. 10, RJC 3.8 (2024).)
Otherwise, you are free to name any adult that you trust as your executor. The court must appoint that person unless someone else challenges your choice of executor and there is clear evidence that he or she is not competent to “reasonably discharge” the duties of the office. (See McFarlin v. McFarlin, 785 S.W.2d 367 (1989); Estate of Doyle v. Hunt, 60 S.W.3d 838 (2001).)
Choose someone who is honest and able to keep track of details in an organized way. Before you make your will, be sure your choice is willing to accept the job.
While you can name a bank or trust company as your executor, it must be authorized to act as fiduciary. Furthermore, the corporation must be based in Tennessee, unless it:
(Tenn. Code §§ 35-50-107, 45-2-1001 (2024).)
That said, think carefully before appointing a corporation to represent your estate. It’s almost always best to name an individual; consider an institution only if you don’t know anyone you trust enough to serve or your estate is very large and complex.
For practical reasons, it’s smart to name an executor who lives near you. Your executor may have to handle day-to-day matters for weeks, months, or sometimes longer. If you must appoint an executor who lives far away, you should know the requirements Tennessee imposes on out-of-state executors.
In Tennessee, a nonresident can serve as your executor if you name an in-state coexecutor and the nonresident appoints the secretary of state as agent to accept legal papers. The probate court may also require the nonresident executor to post bond. (Tenn. Code § 35-50-107 (2024).)
For more information about choosing your executor and making your will, see the Wills section of Nolo.com.
]]>Probate in Tennessee commonly takes six months to a year. It may take longer if there is a court fight over the will (which is rare) or unusual assets or debts that complicate matters.
Not all assets need to go through probate. Only assets that the deceased person owned in his or her own name, alone, must go through probate. All other assets pass to new owners without oversight from the probate court. Assets that go through probate make up what’s called the “probate estate.”
Here are common kinds of assets that are NOT part of the probate estate:
Tennessee provides an alternative to regular probate if the estate is small. The simplified procedure is available if the total probate estate is worth no more than $50,000, not counting real estate. It can be used to transfer all estate assets except real estate. Learn more about simplified probate in Tennessee.
If the deceased person left a will, probate is begun when the person named as executor in the will deposits the original, signed will in the county clerk’s probate office in the county where the deceased person lived. The court issues this person “letters testamentary,” which give the person authority to take charge of estate assets. If there’s no will, a family member—usually the surviving spouse or grown child—asks the court to be appointed as administrator, and the court issues “letters of administration.”
The executor or administrator—known generally as the personal representative of the estate—has authority over any assets that go through probate. Usually, the personal representative opens a checking account for the estate, puts the money from the deceased person’s accounts in it, and uses the funds to pay estate expenses. A taxpayer identification number must be obtained from the IRS before an account can be opened.
If there’s a will, its validity must be proven in court. If the will was signed in front of two witnesses, one of them must either come to court or submit a sworn statement on the validity of the will. But, if the will is contested, both witnesses must state the validity of the will. (Tenn. Code Ann. § 32-2-104)
If the will wasn’t witnessed, but it is signed and entirely in the handwriting of the person who made it, it’s called a "holographic will." To prove its validity, two witnesses must testify to the authenticity of the handwriting. (Tenn. Code Ann. § 32-1-105)
The personal representative must notify creditors of whom he or she is aware. A personal representative can usually find the names of creditors by going through the deceased person’s financial records, mainly tax returns and checkbooks.
The court clerk also publishes notice of the death in a local newspaper, to give creditors a chance to make claims. Depending on whether or not, and when, the creditors receive actual notice of the probate proceedings, they may have from four to 12 months to make a formal claim. Most creditors submit claims informally, and the personal representative pays them. (Tenn. Code Ann. § 30-2-306)
Within 60 days after being appointed, the personal representative must:
When debts and taxes are paid, the personal representative can pay what’s left of the probate estate to the people entitled to inherit it.
If the deceased person owned real estate in another state, the personal representative may need to conduct a probate proceeding in that state. That’s called an ancillary probate.
It’s the personal representative’s responsibility to file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself.
A federal estate tax return will be required only if the deceased person’s taxable estate is very large—for deaths in 2024, more than $13.61 million. More than 99% of all estates do not owe federal estate tax.
Tennessee used to have its own estate tax, which was imposed on estates worth more than $5 million (for deaths in 2015). The tax was referred to in Tennessee as an inheritance tax, but it functioned like an estate tax because it affected only estates that have a total value of more than a certain dollar amount. The tax was phased out and then eliminated as of January 1, 2016.
]]>Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don’t have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Tennessee.
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:
If you die with: |
here’s what happens: |
children but no spouse | children inherit everything |
spouse but no descendants | spouse inherits everything |
spouse and descendants | spouse and descendants equally share the intestate property, but the spouse’s share may not be less than 1/3 |
parents but no spouse or descendants | parents inherit everything |
siblings but no spouse, descendants, or parents | siblings inherit everything |
(Tenn. Code § 31-2-104 (2023).)
In Tennessee, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants -- children, grandchildren, or great-grandchildren. If you don’t, then your spouse inherits all of your intestate property. If you do, they and your spouse will share your intestate property equally, except that your spouse’s share cannot be less than 1/3. (Tenn. Code § 31-2-104 (2023).)
Example 1: Bill is married to Karen, and they have three grown children. Bill and Karen own a house in joint tenancy, and Karen is also the named beneficiary of Bill’s retirement account. When Bill dies, Karen automatically inherits the house and any remaining retirement funds; those things are not intestate property. Bill also owns $300,000 worth of other property that would have passed under a will, so Karen inherits $100,000 worth -- that is, 1/3 -- of that property. The three children split the remaining $200,000 worth of Bill’s intestate property.
Example 2: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright -- it isn’t intestate property. Jed also inherits $100,000 worth of Barrett’s property. Barrett’s daughter inherits the remaining $100,000 share of Barrett’s property.
Example 3: Jill is married to Kevin, and they have four grown children. Jill and Kevin own a large bank account in joint tenancy, and Jill took out a life insurance policy naming Kevin as the beneficiary. When Jill dies, Kevin receives the life insurance policy proceeds and inherits the bank account outright. Jill also owns $600,000 worth of property that would have passed under a will, so Kevin inherits $200,000 worth – that is, 1/3 – of that property. The four children split the remaining $400,000 worth of Jill’s intestate property, receiving $100,000 each.
If you die without a will in Tennessee, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married. (See the table above.)
For children to inherit from you under the laws of intestacy, Tennessee must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney. If you want to read the laws themselves, you’ll find a link to the Tennessee Statutes at the end of this article.
If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. (Tenn. Code § 31-2-109 (2023).)
However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, aunts, uncles, or cousins.
Here are a few other things to know about Tennessee’s intestacy laws.
To learn more about intestate succession, read How an Estate Is Settled If There’s No Will.
You can find Tennessee’s intestate succession laws in Sections 31-2-101 to 31-2-109 of the Tennessee Code.
For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.
]]>You can make several different types of POAs in Tennessee. In particular, many estate plans include two POAs:
In most estate plans, these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.
To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in Tennessee.
For your POA to be valid in Tennessee, it must meet certain requirements.
The person making a power of attorney must be of sound mind. The exact contours of this mental capacity requirement are open to interpretation by Tennessee courts. If you're helping someone make a POA and you're not sure if they meet the mental capacity requirement, you should consult a lawyer.
While Tennessee's power of attorney laws are technically silent on the subject of notarization, you should sign your POA in the presence of a notary public. Many financial institutions will not want to rely on a POA unless it has been notarized—a process that helps to authenticate the document.
Some private companies offer forms or templates with blanks that you can fill out to create your POA. For a more user-friendly experience, try WillMaker, which guides you through a series of questions to arrive at a POA (and an estate plan) that meets your specific aims and is valid in your state. You can also hire a Tennessee lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.
Whatever method you choose, the process of making the POA will likely include either granting your agent comprehensive powers or selecting, from a list, the specific powers you want your agent to have. For example, you might choose to grant your agent the power to engage in:
In Tennessee, your POA is not durable by default. To make the POA effective even after your incapacitation, Tennessee laws require an explicit statement. The law suggests wording such as: ““This power of attorney shall not be affected by subsequent disability or incapacity of the principal.” (Tenn. Code § 34-6-102.)
As mentioned above, you should have your POA notarized.
Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your attorney-in-fact might need the original POA to act on your behalf.
You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document.
If you gave your agent the power to conduct transactions with real estate, you should also file a copy of your POA in the land records office (called the register of deeds in Tennessee) in the county or counties where you own real estate. This will allow the register of deeds to recognize your agent's authority if your agent ever needs to sell, mortgage, or transfer real estate for you.
You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. Banks can sometimes be finicky about accepting POAs; see Can Banks Refuse a Power of Attorney? for more details.
Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.
Tennessee allows you to appoint co-agents who are authorized to act at the same time, but it's usually advisable to stick to just one agent to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.
Your POA is effective immediately unless it explicitly states that it takes effect at a future date.
It's possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are many reasons why this type of "springing" power of attorney is not usually advised.
Any power of attorney automatically ends at your death. A durable POA also ends if:
For more on Tennessee estate planning issues, see our section on Tennessee Estate Planning.
]]>Here’s a quick checklist for making a will in Tennessee:
A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:
In Tennessee, if you die without a will, your property will be distributed according to state "intestacy" laws. Tennessee's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, nieces, and nephews. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
No. You can make your own will in Tennessee, using Nolo's Quicken WillMaker & Trust. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or you have especially complicated goals, you should talk with an attorney. See Do I Need an Attorney to Make My Estate Plan?
To make a will in Tennessee, you must be:
You must generally make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see “Can I Make a Digital or Electronic Will?,” below.) Tennessee does permit handwritten wills (Tennessee Code Ann. § 32-1-105), but they are usually not a good idea.
Tennessee does also recognize nuncupative (oral) wills in very limited circumstances. To make an oral will, you must be in imminent peril of death and you must die from that peril. Additionally, you must state you are communicating your will to two disinterested witnesses, one of the witnesses must put your statements in writing within 30 days, and your will must be submitted to probate within six months of your death. This type of will can only dispose of up to $1,000 in personal property or $10,000 if you are in active military, air, or naval service. This type of will doesn't revoke or change any existing written will. Tennessee Code Ann. § 32-1-106.
To finalize your will in Tennessee:
It's best to have a "disinterested" person who has nothing to inherit from you sign your will as a witness than an "interested" person since an interested person can lose the gift you left to him or her in your will if acting as your witness. Tennessee Code Ann. § 32-1-103.
Holographic wills do not need to be witnessed. However, the signature and all material provisions in them have to be in your own handwriting. There must be two people who can say that it is your handwriting. Tennessee Code Ann. § 32-1-105.
No, in Tennessee, you do not need to notarize your will to make it legal.
However, Tennessee allows you to make your will "self-proving" and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.
To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that states who you are and that each of you knew you were signing the will. Tennessee Code Ann. § 32-1-110.
Yes. In Tennessee, you can use your will to name an executor who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker produces a letter to your executor that generally explains what the job requires. If you don't name an executor, the probate court will appoint someone to take on the job of winding up your estate.
In Tennessee, you may revoke or change your will at any time. You can revoke your will by:
If you marry someone after you make your will and have a child, your will is automatically revoked. Tennessee Code Ann. § 32-1-201. In this situation, you would have to make another will to avoid Tennessee's intestacy law.
If you and your spouse divorce (or if a court determines that your marriage is not legal), Tennessee law revokes any language in your will that leaves property to your spouse or names your spouse to be your executor. This rule does not apply if you specifically state in your will that divorce should not affect the provisions in your will or you happen to remarry your spouse. Tennessee Code Ann. § 32-1-202. If you have any concerns about the effects of divorce on your will, see an estate planning attorney for help.
If you need to make changes to your will, it’s best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will – this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).
In a handful of states, you can make a legal will digitally—that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. Tennessee currently doesn't allow e-wills, but that may change in the future.
You can find Tennessee’s laws about making wills here: Tennessee Code Annotated Title 32 Wills Chapter 1 Execution of Wills.
]]>You may want copies of a death certificate for a number of reasons. If you're in charge of wrapping up the deceased person’s affairs, you might need multiple official copies to carry out your job. For example, you'll need to submit a certified copy of the death certificate each time you claim property or benefits that belonged to the deceased person, including life insurance proceeds, Social Security benefits, payable-on-death accounts, veterans benefits, and many others.
In Tennessee, a death certificate must be filed with the office of vital records within five days of the death and before final disposition of the body. (Tenn. Code § 68-3-502.) The easiest way to get copies of a death certificate is to ask the person or organization that files the certificate to order them for you at the time of the death; usually this will be a funeral home, mortuary, or crematory. If you're the executor of the estate, you should ask for at least 10 certified copies.
If you need to order copies of a death certificate later, visit the website of the Tennessee Department of Health. From there, you'll find options for ordering death certificates online, in person, or by mail.
To order certified copies of a death certificate, you must provide an acceptable form of identification, or sign your application and have it notarized. Each certified copy of a Tennessee death certificate costs $15.
In Tennessee, a certified copy of the death certificate that includes the cause of death may be issued only to certain individuals and organizations. This group includes:
For more information, see Tennessee Code § 68-3-205 and Tennessee’s death certificate application form.
In Tennessee, the funeral director, medical examiner, or physician can file the death certificate. To fill out the death certificate, this person obtains personal data from the next of kin. The medical certification portion of the death certificate is usually filled out by the physician who was in charge of the deceased person's care for the illness or condition that caused the death. The physician has 48 hours after the death to complete it.
If the death was not due to natural causes, the case is referred to the county medical examiner for completion of the medical certification. If the cause of death can't be determined within 48 hours, the physician or medical examiner must inform the funeral director about the cause of the delay, and the body can't be buried or cremated until the physician or medical examiner approves it. (Tenn. Code § 68-3-502.)
Embalming is a process in which blood is drained from the body and replaced with fluids that delay disintegration. Though it's still a common procedure, embalming is rarely necessary; refrigeration serves the same purpose.
In Tennessee, there are no laws or regulations requiring embalming.
A casket is often the single greatest expense incurred after a death. The average cost of a casket is more than $2,000, and the price can run into the $10,000-$20,000 range for more elaborate designs and expensive materials. Whether due to the cost or for other reasons, some people prefer to forgo a casket altogether.
Burial. No law requires a casket for burial. However, you should check with the cemetery; it may have rules requiring a certain type of container.
Cremation. No law requires a casket for cremation. On the contrary, federal law requires a funeral home or crematory to inform you that you may use an alternative container, and to make such containers available to you. An alternative container may be made of unfinished wood, pressed wood, fiberboard, or cardboard.
No. Although funeral homes may sometimes be very pushy about getting you to buy caskets from them, federal law requires funeral homes to accept caskets that consumers have purchased from another source, such as an online retailer. (Learn more about your consumer rights under the FTC Funeral Rule.) You may also build your own casket, if you prefer.
Alkaline hydrolysis (more informally called "water cremation," "flameless cremation," "aquamation," and many other terms) is a chemical process that reduces a body to components of liquid and bone. It's considered a greener alternative to cremation because it uses less energy than cremation and does not release matter into the atmosphere.
In 2021, Tennessee recognized aquamation as an acceptable form of disposition when it added a definition of "alkaline hydrolysis" to its laws on funeral directors and embalmers:
While water cremation or aquamation is recognized by law, you might be able to find only a small number of facilities offering the service in Tennessee, which might mean traveling a distance to access it. The equipment is expensive and public demand is still small, though it's growing. With time, facilities offering water cremation are likely to become more commonplace.
If you're interested in this option for yourself, you may want to explore pre-planning your final arrangements. Water cremation tends to cost a little more than traditional cremation. (For example, see this 2023 NPR interview on water cremation in which one funeral home prices its water cremation service at $1,000 more than traditional cremation.)
Learn more about alkaline hydrolysis.
Most bodies are buried in cemeteries, but there are no state laws in Tennessee that prohibit burial on private property. Local governments may have rules governing private burials, however. Before conducting a home burial, check with the town or county clerk and local health department for any rules you must follow.
If you do bury a body on private land, you should draw a map of the property showing the burial ground and file it with the property deed so the location will be clear to others in the future. In Tennessee, family burial grounds are protected if they are recorded with a deed. (See Tenn. Code § 46-8-103.)
In Tennessee, there are no state laws controlling where an individual may keep or scatter ashes. Ashes may be stored in a crypt, niche, grave, or container at home. If you wish to scatter ashes, you have many options. Generally, use common sense and refrain from scattering ashes in places where they would be obvious to others.
Scattering ashes in an established scattering garden. Many cemeteries provide gardens for scattering ashes. If you’re interested, ask the cemetery for more information.
Scattering ashes on private land. You are allowed to scatter ashes on your own private property. If you want to scatter ashes on someone else’s private land, it is wise to obtain permission from the landowner.
Scattering ashes on public land. You may wish to check both city and county regulations and zoning rules before scattering ashes on local public land, such as in a city park. However, many people simply proceed as they wish, letting their best judgment be their guide.
Scattering ashes on federal land. Officially, you should request permission before scattering ashes on federal land. As with local or state land, however, you will probably encounter no resistance if you conduct the scattering ceremony quietly and keep the ashes well away from trails, roads, facilities, developed areas, campsites, and waterways. You can find guidelines for scattering ashes on the websites for some national parks. For more information, begin your search at the website of the National Park Service.
Scattering ashes at sea. The federal Clean Water Act requires that cremated remains be scattered at least three nautical miles from land. The EPA does not permit scattering at beaches or in wading pools by the sea. Finally, you must notify the EPA within 30 days of scattering ashes at sea.
The Clean Water Act also governs scattering in inland waters such as rivers or lakes. For inland water burial, you may be legally required to obtain a permit from the state agency that manages the waterway.
For more information, including the contact information for the EPA representative in Tennessee, see the EPA's page on Burial at Sea.
Scattering ashes by air. There are no state laws on the matter, but federal aviation laws prohibit dropping any objects that might cause harm to people or property. The U.S. government does not consider cremains to be hazardous material; all should be well so long as you remove the ashes from their container before scattering.
To learn about the federal rule on funerals, which protects consumers in all states, visit the FTC's Funeral Rule page.
For more information about funeral laws in Tennessee, see Tennessee Home Funeral Laws.
To find out more about funerals and other final arrangements, see Nolo's section on Getting Your Affairs in Order.
Get It Together, by Melanie Cullen (Nolo) helps you gather and organize the essential details of your life for yourself and your family.
]]>A small estate proceeding is available in Tennessee if:
(Tenn. Code Ann. §§ 30-4-102 and following.)
You can file an affidavit to begin a small estate proceeding if you are:
(Tenn. Code Ann. §§ 30-4-103.)
Below is an overview of Tennessee's small estate procedure.
To open the small estate proceeding, you'll need to file a small estate affidavit. Check with the probate court in the county where the deceased person lived to find out if the county has a form affidavit available. (Here's a sample.)
This affidavit includes information such as:
You'll file the affidavit along with a certified death certificate with the probate court.
Once the court accepts the affidavit, you can present it to the person or institution holding property that belonged to the deceased—for example, a bank where the deceased person had an account. The inheritor will usually also need to provide a certified copy of the death certificate. After that, the person or institution releases the asset.
Notably, using the small estate affidavit means that you can skip a step of regular probate that can take a few months: giving notice to creditors.
Some people may be required to post a bond that is equal to the value of the estate, as insurance that they will property administer the estate. But some are exempt from having to secure bonds, including (1) anyone who is a sole heir of the deceased person and (2) when all heirs agree to forego the bond. (Tenn. Code Ann. §§ 30-4-103.)
For more help handling an estate in general, see The Executor's Guide, by Mary Randolph (Nolo). For an introduction to how you can plan your estate to help your survivors, try Estate Planning Basics, by Denis Clifford (Nolo).
For more on Tennessee estate planning issues, see our section on Tennessee Estate Planning.
]]>In all states, it is legal to have your loved one’s body at home after they die. Tennessee does not require you to involve a licensed funeral director in making or carrying out final arrangements. (See, for example, Tennessee Code § 68-3-502 (2018), which permits the “funeral director, or person acting as funeral director” to file the death certificate.)
Tennessee law determines who has the right to make final decisions about a person’s body and funeral services. If you make an advance health care directive or durable power of attorney for health care, you can give this authority to the person you name as your health care agent, sometimes called your “attorney-in-fact.” (Tennessee Code § § 34-6-204(b)(3) (2018).) Otherwise, the power goes to your next of kin.
Naming an agent. For more information about naming an agent in an advance directive or health care power of attorney, see Living Wills & Medical Powers of Attorney.
To make a Tennessee advance directive or health care power of attorney that appoints your health care agent to carry out your final plans, you can use Nolo’s Quicken WillMaker.
If you are in the military, you may name the person who will carry out your final wishes in the Record of Emergency Data provided by the Department of Defense.
Who pays for your funeral arrangements? You can either pay for your plans before you die, or you can set aside money for your survivors to use for this purpose. If you don’t do either of these things, and there’s not enough money in your estate to pay for funeral goods and services, your survivors must cover the costs.
Tennessee has no embalming requirements, nor does state law specify a time frame within which you must dispose of the remains.
Refrigeration or dry ice can usually preserve a body for a short time. There are resources available to help you learn to prepare a body at home for burial or cremation. The website of the National Home Funeral Alliance is a good place to start.
If the person died of a contagious disease, you should consult a doctor.
If you will not be using a funeral director to carry out final arrangements, you must complete and file the death certificate yourself. Tennessee law requires you to file the death certificate with the office of vital records within five days after the death and before final disposition. (Tennessee Code § 68-3-502 (2018).)
The deceased person’s doctor or the medical examiner must supply the date, time, and cause of death and present the death certificate to you within 48 hours after the death for completion and filing. (Tennessee Code § 68-3-502 (2018).)
You will need certified copies of the death certificate to carry out certain tasks after the death, such as arranging for the disposition of the body and transferring the deceased person’s property to inheritors. You may be able to file the death certificate and get certified copies the same day. If not, you will have to make a return trip to pick up the copies. Be prepared to pay a small fee for each copy.
The deceased person’s doctor or the medical examiner will grant permission to move the body to prepare it for final disposition. (Tennessee Code § 68-3-507 (2018).) For example, if someone dies outside the home, you would need this authorization before bringing the body home for care. Or, if someone dies at home, permission is necessary to move the body to a location away from home for burial or cremation.
There are no state laws in Tennessee prohibiting home burial, but local governments may have rules governing private burials. Before burying a body on private property or establishing a family cemetery, you should check with the county or town clerk for any zoning laws you must follow. You can most likely hold a home burial if you live in a rural area.
Tennessee state law protects family burial grounds from disturbance or development, as long as the deed to the property indicates the presence of gravesites. (Tennessee Code § 46-8-103 (2018).)
Some crematories require that you use a funeral director to arrange cremation. If you don’t want to use a funeral director, make sure the crematory is willing to accept the body directly from the family. In Tennessee, no special cremation permit is necessary. (See Tennessee Code §§ 68-3-102 and 68-3-507 (2018).)
For more information about cremation, including information on scattering ashes, see Burial and Cremation Laws in Tennessee.
Even the most staunch home funeral advocates know that learning to care for one’s own dead can be difficult, especially during a time of grief. If you need help, there are people available to coach you through the process. You can find local guides, consultants, and other resources by visiting the National Home Funeral Alliance website. The book Final Rights, by Joshua Slocum and Lisa Carlson, also offers extensive information on the subject.
For more information about final arrangements and documenting your final wishes in advance, see Nolo’s section on Getting Your Affairs in Order.
]]>A "living" trust (also called an "inter vivos" trust) is simply a trust you create while you're alive. The beneficiaries you name in your living trust receive the trust property when you die. You could instead use a will, but wills must go through probate—the court process that oversees the transfer of your property to your beneficiaries.
Many people create a revocable living trust as part of their estate plan. You can modify or revoke (cancel) this type of trust at any time. Typically, you'll name yourself as the "trustee" of your trust. This means that while you're alive, you retain control of the trust and its property. In your trust document, you'll also name a "successor trustee" to take over and manage the trust after you die; this person will distribute the property in the trust to your beneficiaries. (If you create a shared living trust, as is often done by married couples, then your successor trustee would assume control after both spouses have died.)
In contrast, irrevocable trusts cannot be revoked or modified after they are signed. Irrevocable trusts can be useful tools for specific goals, like reducing taxes, but they require giving up ownership and control of trust property.
When you set up a living trust to transfer your property to your loved ones after your death, you can potentially save them a lot of time, hassle, and money. Property left through a will (rather than a living trust) might be tied up for months or even years in probate court, and could involve court costs and lawyers' fees. By contrast, property left through a trust can be distributed to your beneficiaries almost immediately, and often without the need for an attorney.
Some states have fully adopted a model law called the Uniform Probate Code, which streamlines the probate process, but unfortunately Tennessee is not one of these states. However, Tennessee does offer a simplified probate process for "small" estates, which are defined as estates worth $50,000 or less (not counting real estate or property held jointly and with a right of survivorship with someone else).
If your estate qualifies for this probate shortcut, called "small estate administration" in Tennessee, the probate process will be quick, straightforward, and relatively inexpensive, so you might not need to worry about making a living trust just to avoid probate.
Yes, you'll still need a will. This might seem confusing—isn't the point of a living trust to avoid needing a will? Yes, it is, and your will might never be used. But you should still write one, for one or both of the following reasons:
If you don't have a will, any property that isn't transferred by your living trust or other method (such as joint tenancy) will go to your closest relatives as determined by Tennessee state law.
Probably not. But most people do not need to worry about federal estate taxes anyway because the federal estate tax is levied only on estates worth close to $12 million. As of 2016, Tennessee no longer imposes its own state estate tax.
If you have an estate worth close to $12 million (or you and your spouse or partner have a combined estate of close to $24 million), you might be able to use a more complicated trust (such as an AB trust) to reduce or avoid federal estate taxes.
To make a living trust in Tennessee, you:
You can use WillMaker & Trust to make a living trust using your computer. It has a simple interview format that allows you to complete the trust at your own pace, and it gives you lots of legal and practical help along the way. Based on your responses, the program produces a living trust document customized for you and your situation. With WillMaker & Trust, you can also make a will, powers of attorney, health care directives, transfer on death deeds, and many other useful documents. Use it just for yourself or for your entire family.
For more on Tennessee estate planning issues, see Tennessee Estate Planning.
]]>In Tennessee, you can make a living trust to avoid probate for virtually any asset you own—real estate, bank accounts, vehicles, and so on. You need to create a trust document (it's similar to a will), naming someone to take over as trustee after your death (called a successor trustee). Then—and this is crucial—you must transfer ownership of your property to yourself as the trustee of the trust. Once all that's done, the property will be controlled by the terms of the trust. At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.
If you own property jointly with someone else, and this ownership includes the "right of survivorship," then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, although of course it will take some paperwork to show that title to the property is held solely by the surviving owner.
In Tennessee, these forms of joint ownership are available:
In Tennessee, you can add a "payable-on-death" (POD) designation to bank accounts such as savings accounts or certificates of deposit. You still control all the money in the account—your POD beneficiary has no rights to the money, and you can spend it all if you want. At your death, the beneficiary can claim the money directly from the bank without probate court proceedings.
Tennessee lets you register stocks and bonds in transfer-on-death (TOD) form. People commonly hold brokerage accounts this way. If you register an account in TOD (also called beneficiary) form, the beneficiary you name will inherit the account automatically at your death. No probate court proceedings will be necessary; the beneficiary will deal directly with the brokerage company to transfer the account.
Tennessee does not allow real estate to be transferred with transfer-on-death deeds.
Tennessee does not allow transfer-on-death registration of vehicles.
Even if you don't do any planning to avoid probate, your estate may qualify for Tennessee's simplified "small estate" probate procedures. For more details, see Probate Shortcuts in Tennessee. For more on avoiding probate, see 8 Ways to Avoid Probate, by Mary Randolph (Nolo).
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