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Living Wills: The Ultimate Guide For Wills And Living Wills In Tennessee

May 18, 2018
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Planning for vacations and holidays is easy.

What isn’t easy is planning for an unexpected event such as a serious illness, injury, or death.

Making decisions for loved ones is one of the most difficult things to do, and is a burden that no one should have to bear.

So don’t let your family bear that burden.

If you were seriously injured tomorrow, would your family know exactly what kind of medical treatment you’d like to receive?

Would they know your final wishes regarding your personal property and other affairs?

If you don’t have a living will and last will and testament, chances are that the answer is NO.

Let’s talk more about living wills and the Tennessee laws accompanying them.

Living Wills: The Ultimate Guide header

Although end-of-life legal documents such as wills, living wills, and power of attorney are important topics for every family to discuss regardless of age, it is a conversation that many put off.

In fact, a recent survey revealed that two-thirds of Americans don’t have a living will (often referred to as a health care directive in states like California and Tennessee).

This means many individuals leave it to their loved ones, or even their attorney, to deal with difficult decisions involving their health, life, and death.

However, given the cases of Estelle Browning and Terri Schiavo, the importance of a living will cannot be emphasized enough.

Chapter 1: What is a Will?

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Also known as a last will and testament, a will is an important legal document that determines what happens to your property as well as your personal affairs following your death.

It is important to have a will in place, no matter what your age or health, in order to protect your loved ones and your property in the chance of your death.

Having a will allows you, the testator, to ensure your wishes are carried out after your death.

Some of the most common uses of a will include:

  • Naming an executor to carry out the terms of your will
  • Choosing a personal guardian who will care for any children that are minors
  • Selecting a trusted individual who can oversee property left to minor children
  • Dictating who you want your property to go to (including people, organizations, or charities)

In addition to these items, a will can also be used to carry out other wishes regarding your estate.

Some of these things include making a charitable gift to an organization, setting up a trust for a relative or loved one, and even providing for the care of a pet.

Chapter 2: What You Need to Know about Creating a Will in Tennessee

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Having a will is not legally required in Tennessee.

However, if you do not have a will in place at the time of your death, the state will determine what happens to your estate based on laws of intestacy.

Based on these laws, the state will give your property to the relatives closest to you, starting with any children or a spouse, moving to more distant relatives.

If the court determines that you do not have any living relatives, your property will be given to the state.

Since these intestacy laws will not necessarily align with your personal wishes regarding your property and affairs, it is important to prepare a last will and testament.

Requirements for Creating a Last Will and Testament in Tennessee

In order to create a will in the state of Tennessee, the testator must be 18 years of age or older and of sound mind.

The document must also be signed by the testator as well as two witnesses in order to finalize the document but is not required to be notarized.

However, if you want to speed up the probate process following your death you can get your will notarized, which will make it “self-proving.”

This simply means that the probate court can accept your will without reaching out to the witnesses, which simplifies probate.

Although Tennessee typically requires that wills are written, the state also recognizes holographic wills (handwritten) as well as nuncupative wills (oral) if they meet specific requirements.

Probate Court

In Tennessee, the last will and testament of the deceased must be verified by a probate court before it can be carried out by the executor of the will.

Once the court confirms that the will is valid, the executor can then carry out the wishes of the decedent, which can include distributing assets, paying debts, and collecting/protecting property.

For estates that are less than $25,000, the state of Tennessee has a more simplified process which can start 45 days after the death of the decedent.

This period can also be waived depending on the circumstances.

Chapter 3: What Is A Living Will?

What is a living will? header

Though it may initially seem like an unneeded conversation, having a living will can give you peace of mind that you will receive the medical care you desire in the case of an unforeseen medical emergency.

Having this documentation in place will also allow you to rest assured that your loved ones will not have to worry about stressful medical decisions regarding your medical care in emergency scenarios.

So, what exactly is a living will?

A living will is a legal document that specifies the type of medical treatment you want—and do not want—to receive during emergency situations if you are unable to communicate your wishes because of permanent unconsciousness (i.e. a coma) or a terminal illness.

This includes a wide range of medical decisions such as treatments used to keep patients alive, including resuscitation and mechanical ventilation, organ donation, and pain management.

Unlike a conventional will that spells out how to distribute or dispose of possessions after a person’s death, a living will indicates what to do while the person, though considerably sick, is still alive.

Chapter 4: Why Do You Need a Living Will?

Why do you need a living will? header

How did a living will—or the lack of one—matter in the cases of Estelle Browning and Terri Schiavo, who were kept alive by feeding tubes for years?

Estelle Browning signed a living will directing that “life-prolonging procedures be withheld” if these would only delay her inevitable death. However, her wishes were not honored, and her case led to a landmark ruling on the right to die.

On the other hand, Terri Schiavo did not have a living will, complicating the question of whether or not her feeding tube should be removed.

When it was, her resulting death became much-publicized and scrutinized. It is cases like these that highlight the importance of having a living will in place.

There are two main reasons that having advance directives such as a living will are critical.

First, and most importantly, a living will ensures that you will be able to make significant medical decisions for yourself—even if you are not able to communicate.

Secondly, planning ahead about your health care wishes in unforeseen circumstances will ease the burden of care placed on your loved ones and keep them from having to make stressful decisions regarding your medical care.

When it comes to families, having this documentation in place can also help avoid tense arguments over medical care.

Chapter 5: Important Factors to Consider when Creating a Living Will

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When drafting a living will, it is key to figure out what you want to take place in the case of an emergency medical situation.

According to the American Bar Association, it is important to consider your values and beliefs as you decide on your wishes, as many provisions in these documents can “have profound religious and philosophical implications.”

In order to determine what you value when it comes to end-of-life care, the Mayo Clinic suggests asking yourself some important questions including:

  • Do you want to receive treatment only if there is a cure available?
  • What situations, such as a lack of self-sufficiency, would make you feel your life was not worth living?
  • In what situations would you want treatment to extend your life?

During the process of creating a living will or a health care directive, it is also important to adhere to the below guidelines:

  1. Ensure your wishes or instructions are clear and consistent so that there will be no room for misinterpretation.
  2. State your intentions for organ donation (if any).
    • For those willing to give the gift of life, living wills provide a means to clarify intentions related to organ and tissue donation.
      If these intentions are not clarified before an individual falls ill, the organ donation may be impossible because of uncertainty over whether or not he/she would have wanted it.
  3. Make copies of the document, with the original kept someplace where loved ones can easily find it.
  4. Double check that the document conforms to the laws of the state where one is living.
    • To do so, it may also be necessary to consult with an attorney knowledgeable in these matters.

As you can see, there are many reasons that having a last will and testament and living will are important—no matter what your age.

Creating a will and/or living will may seem like a daunting, and somewhat depressing, task.

However, by taking the time to put your wishes into a legal document, you will save yourself and your family from much stress in the case of a catastrophic event.

If you or a loved one are writing a last will and testament or living will and want the assistance of an experienced attorney, contact Ken Phillips Law today.

Our team has years of experience working with clients on estate planning documents such as wills, living wills, and power of attorney, and are here to make the process quick and easy.

Protect yourself and your loved ones by creating a last will and testament and living will today.

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