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Wills Attorney Michael L. Smith Explains the Possibility of Accidentally Disinheriting Your Spouse

My last article about estate planning warned readers of the dangers associated with passing away without a valid Will drafted by a Wills Attorney, which is called intestacy. For young couples, especially young couples with children, intestacy can be devastating. Consider the following example. John and Jill are happily married high school sweethearts with 2 young kids. They have heard from friends or maybe their financial advisor that they need a Will, but they have never taken any steps to create one because they are just starting to build their financial portfolio and they incorrectly believe that only rich people or elderly folks need a Will. So, they don't give it another thought and they put it off for a later day. Now, let's assume that John passes away unexpectedly. If John had a Will, he would have left everything to Jill. But, without a Will, Jill is only entitled to one-third (33.33%) of the estate (remember, in an intestate estate where a spouse and children are left behind, the surviving spouse takes the greater of a share equal to that of each of the decedent's children or one-third of the net estate- meaning the spouse receives either the same share as the children if it is at least 33% of the estate; see Tennessee Code section 31-2-104). In this scenario, state law dictates that Jill receives 33.33% of John's estate, child 1 receives 33.33%, and child 2 receives 33.33%. But since the children are under age 18, they cannot legally receive their portion of the estate. So, a separate Custodial Account will have to be set up at a bank for each of the children. Jill will likely be appointed by the court to manage the account, but she must use the funds for the benefit of the children and not for her own benefit. As you can imagine, this will likely be a major inconvenience for this young family in transition. Without meaning to do so, John has disinherited his wife from direct access to 66.66% of the estate he has left behind. Not to mention, probating his estate was time consuming, complicated, and costly for his young wife who was already dealing with the emotions of losing a spouse.

With a simple Will, John could have left clear instructions regarding the distribution of his property and assured that his wife would receive all of his estate assets. If you are one of the 70% of Americans without a Will, your family could face similar consequences. Is it worth the risk? Everyone should be proactive when it comes to their estate planning. Especially if they are responsible for the well being of a young family. Don't leave your estate to chance. For a free consultation with Knoxville Wills Attorney Michael L. Smith call (865) 777-WILL (9455) today.