A will, formally called a “Last Will and Testament,” is a legal document that spells out how you want your property distributed after you pass away, and who you want to serve as executor to carry that out. If you have minor children, it’s also where you name a guardian for them. A will only takes effect after your death, and it generally has to go through probate, the court process that validates the will and oversees settling your estate, before your instructions can actually be carried out.
T.C.A. §§ 32-1-101 to 32-11-113 (Title 32 on Justia).
T.C.A. §§ 31-1-101 to 31-7-117 (Title 31 on Justia), including intestacy, simultaneous death, and the spousal elective share.
T.C.A. §§ 35-2-101 to 35-50-125 (Title 35 on Justia), including testamentary trusts created through a will.
T.C.A. §§ 30-1-101 to 30-5-105 (Title 30 on Justia).
Each of these title pages breaks down into the individual chapters and sections cited above, so you can navigate to the specific provision you’re looking for from there. Because I don’t have the ability to browse the live web and click through these in this session, it’s worth confirming each link actually lands on the right title before relying on it, and cross-checking against the Tennessee Code Annotated or an attorney for anything that matters to your specific situation.
A few specific legal requirements determine whether someone is actually allowed to make a valid will.
In Tennessee, you generally have to be at least 18 years old to make a will, under T.C.A. § 32-1-102.
Beyond age, you also need “testamentary capacity,” meaning you generally have to understand the nature and extent of your property, who would normally inherit from you, and what you’re actually doing by signing a will.
No. Tennessee doesn’t allow an agent acting under a power of attorney to create a will for someone else without that person’s own participation, under T.C.A. §§ 34-6-101 to 34-6-112.
Under T.C.A. § 32-1-104(a)(1), if the testator can’t physically sign, another person can sign the testator’s name for them, at the testator’s direction, in their presence, and in the presence of at least two attesting witnesses.
Beyond who can make a will, Tennessee law has specific requirements for what the document needs to include and how it needs to be signed.
It has to be in writing. Tennessee doesn’t recognize purely spoken wills except in extremely narrow circumstances.
It has to show clear testamentary intent. The document has to actually be intended as a will.
It generally needs to be signed by the testator (or signed on their behalf under the specific conditions described above).
Two attesting witnesses are required, and they generally need to watch the testator sign, or acknowledge the signature, and then sign the document themselves.
A self-proving affidavit is optional but a good idea, since it can eliminate the need to track down witnesses to testify when the will eventually goes to probate.
Tennessee recognizes certain handwritten (“holographic”) wills, generally requiring the material provisions be in the testator’s own handwriting.
Oral (“nuncupative”) wills are recognized only in extremely limited situations, and even then, subject to significant restrictions.
Because these formalities matter so much, a will that’s missing a witness signature, or signed incorrectly, can end up being thrown out entirely, exactly when your family needs it to work.
If you die without a valid will, Tennessee’s intestate succession laws, found in T.C.A. §§ 31-1-101 to 31-7-117, decide who inherits your property instead of your own wishes. In general terms, the order typically looks something like this:
If you’re survived by both a spouse and children, they generally share the estate according to a specific statutory formula.
A surviving spouse with no children generally inherits the entire estate.
The children generally inherit the entire estate, divided among them.
If there’s no surviving spouse or children.
If there’s no surviving spouse, children, or parents.
Following a specific statutory order if none of the above survive.
This is a fixed legal formula, it doesn’t account for stepchildren you helped raise but never formally adopted, a long-term partner you never married, legal relatives with whom you have no relationship, or specific personal wishes you never wrote down.
Even when you do have a will, Tennessee law provides certain protections for specific family members, so a will can’t completely cut out everyone.
A surviving spouse generally can’t be entirely disinherited by a will alone. Tennessee law generally allows them to instead claim an “elective share” of the estate, with the amount often depending on the length of the marriage.
A “pretermitted” or “omitted” child can generally still inherit a share as if the parent had died without a will, unless the will shows the omission was intentional.
Tennessee law also provides certain protections and allowances for a surviving spouse and minor children regarding specific property.
Once someone dies, Tennessee law generally expects the person holding the original will (often the named executor, or whoever has physical custody of the document) to file or “lodge” it with the appropriate probate court within a reasonable window after learning of the death, rather than sitting on it indefinitely. It’s worth confirming the current deadline directly with an attorney or the probate court in the relevant county, rather than assuming a specific number of days applies to your situation. Regardless of the exact deadline, filing the will promptly is important, since delays can hold up the entire probate process.
A well-drafted will typically includes more than just “who gets what.” Common provisions include:
Naming who will manage and settle your estate.
Naming who should raise your minor children.
Gifts of particular items or amounts to particular people.
Covering everything not specifically mentioned elsewhere in the will.
Discouraging beneficiaries from challenging the will by threatening to reduce or eliminate their inheritance if they do.
Though these are sometimes better communicated separately, since a will may not be read until after the funeral.
Specifying how any estate taxes owed should be divided among beneficiaries.
Addressing what happens if you and a beneficiary die at the same time or in circumstances where the order of death can’t be determined.
Here’s roughly what the process looks like, step by step.
Who do you want to inherit what, and are there any specific people or purposes you want addressed?
Pick someone you trust to carry out your wishes, and, if you have minor children, someone you’d want raising them. These can be different people, and you should have back-ups.
Figure out what happens to particular items and to everything else.
This helps make sure the language is clear, legally valid, and actually reflects your intent.
Follow Tennessee’s specific execution requirements exactly.
This extra step, signed and notarized along with the will, can make probate go more smoothly later.
A will that can’t be found is functionally useless.
Marriage, divorce, a new child, a move, or the death of someone named in the will should all trigger a review.
A will is just one piece of a complete estate plan.
A will is only as good as its planning and execution. One missing witness signature can undo the whole thing. At Dahl Family Law, we bring:
A clear understanding of Tennessee’s specific signing and witnessing requirements.
Careful attention to making sure your will actually says what you mean, not just what a generic template assumes.
Coordination with any trusts or beneficiary designations you have, so everything works together.
Support for your executor and family if your will ever needs to go through probate.
Yes, as long as you still have testamentary capacity. This is usually done through a formal amendment called a codicil, or by revoking the old will entirely and executing a new one.
Not automatically, but Tennessee law does have some specific rules about how divorce affects provisions in an existing will that name a former spouse. Regardless, it's important to review and update your will after either event rather than assuming the law handles it the way you'd want.
If a will is successfully challenged or found invalid, generally due to improper execution, lack of capacity, or undue influence, the estate is typically treated as if there were no will at all, and Tennessee's intestate succession laws take over instead.
It's not legally required, but wills have strict execution requirements, and a mistake can make the whole document invalid. An attorney helps make sure your will is both valid and actually accomplishes what you intend.
Whether you’re writing your first will or updating an old one, getting the details right matters, since a will only gets tested for validity after you’re no longer around to fix any mistakes.
Dahl Family Law provides representation in a wide range of family law matters, including:
This guide is intended for general informational purposes only and does not constitute legal advice. Estate planning is fact-specific, and outcomes depend on the details of your situation. Please consult with a licensed Tennessee attorney regarding your specific circumstances.
