Revocable Living Trust vs. Will in Tennessee
In Tennessee, a will and a revocable living trust can both say who receives your property when you die. The main difference is how the property gets there. A will has to be proved in probate court before it can pass anything. Property that you have already moved into a funded living trust is held by the trustee, so it generally passes to your beneficiaries without probate. A trust also lets someone you choose manage that property if you become unable to. Many families need only a will; others do better with a trust plus a pour-over will.
What a will does
A will names the people who will receive your property, and it names an executor to handle your estate. It does nothing until you die. Then it must be proved and recorded in probate court in the county where you lived (Tenn. Code Ann. § 32-2-101). In Sumner County, that court is the Chancery Court in Gallatin.
Tennessee has firm rules for signing a will. For most wills, you must sign it, or acknowledge your signature, in front of at least two witnesses, and the witnesses must sign in your presence and in the presence of each other (§ 32-1-104). A will that misses these steps can fail.
What a revocable living trust does
A living trust holds property for the beneficiaries you name. It can be created by transferring property to a trustee, or by declaring that you hold certain property as trustee (§ 35-15-401). Many people serve as their own trustee while they are alive and name a successor trustee to take over later.
Under Tennessee law, a trust is created only if the person making it (the settlor) has capacity and intends to create it, the trust has a definite beneficiary, the trustee has duties to perform, and the same person is not both the sole trustee and the sole beneficiary (§ 35-15-402).
A Tennessee trust made on or after July 1, 2004 can be revoked or amended unless its terms expressly say it is irrevocable (§ 35-15-602). You change it using the method the trust document sets out, and in some cases by a later will that expressly refers to the trust. While the trust is revocable and you have capacity, the trustee's duties are owed only to you (§ 35-15-603).
Learn more on our wills and trusts page.
A trust only works if you fund it
Signing a trust document is only the first step. A lifetime trust is valid as to the assets actually transferred to it (§ 35-15-402(d)). Real estate, stocks, bonds, bank accounts and brokerage accounts are transferred by recording a deed or completing registration in the name of the trust or trustee. A sentence in the trust saying it owns those assets is not enough.
For your house, that means signing a new deed into the trust and recording it with the Register of Deeds. Household belongings can be assigned by a signed writing that describes them in general terms and identifies the trust. This retitling is why a trust takes more setup work than a will.
Why a trust still needs a pour-over will
A pour-over will catches anything left out of the trust. Tennessee law lets a will leave property to the trustee of your trust, and that property becomes part of the trust and is handled under the trust's terms, including later amendments (§ 32-3-106). If the trust is revoked before your death, the gift in the will lapses.
A pour-over will is still a will, so anything it covers goes through probate first. See do I need probate in Tennessee.
Privacy
A will that is probated is proved and recorded in the probate court (§ 32-2-101). Property already titled in a funded trust does not pass that way. When a bank or title company needs proof of the trust, the trustee can give a notarized certification of trust instead of the full document, and it does not have to say who receives what (§ 35-15-1013).
If you become unable to manage your affairs
A will does not help while you are alive. If you lose capacity without a plan, your family may have to ask a court to appoint a conservator. That starts with a sworn petition that describes the disability and identifies the person's physician or psychologist and the medical examination (§ 34-3-104). The court must impose the least restrictive alternative that still protects you and your property (§ 34-1-127).
A trust can name a successor trustee to step in under conditions the trust itself sets out (§§ 35-15-704, 35-15-1013). The successor trustee manages only what is in the trust, so most plans also include a durable power of attorney, one written to keep working after a disability (§ 34-6-102). An agent can change your trust only if the trust or the power of attorney expressly allows it (§ 35-15-602(e)). See power of attorney vs. conservatorship.
Who a trust may suit, and when a will is enough
A trust may be worth the extra setup work if you:
Want a person you choose to manage your property if you cannot.
Own a home you would like to pass without probate.
Want to keep the details of who receives what out of the probate file.
Have beneficiaries who should receive property over time, not all at once.
A will may be enough if your estate is simple, most of your assets already pass by beneficiary designation or joint ownership, and you are comfortable with your family going through probate.
What neither document controls
Some assets pass outside both a will and a trust. A bank account titled to joint owners with a right of survivorship goes to the survivor, even if the first owner's will says otherwise (§ 45-2-703). A payable-on-death account is paid to the named payee (§ 45-2-704). Tennessee's probate law also treats property payable to a named beneficiary as outside the probate property it counts (§ 30-4-102). Review these designations with your will or trust so everything points the same way.
A revocable trust also does not shield property from your creditors, either during your life or after your death (§ 35-15-505).
Ready to Talk?
Call (615) 997-7618 to talk with Kylene Ross about whether a living trust or a will fits your family in Sumner County or a nearby county. Our paralegal Cajun has 20 years of experience in probate, wills and estates. Prefer to write first? Send us a message and we are notified right away.
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