I already have a will and don't need your help.

I get this all the time.  Here's how the conversation goes:

Me:         Are your Will and your Powers of Attorney documents up to date?

Caller:    Yes, I bought them online ten (10) years ago.

Me:        Was the Will typed or handwritten?

Caller:    Typed.

Me:        When you signed the Will, did you have two (2) witnesses?

Caller:    No, just the notary.

Me:        That does not sound like a valid Tennessee Will.  When would you like to come and see me?

Caller:    Wait? What? But I paid the online service for it!


The Tennessee statute for wills, other than handwritten, states:

Tenn. Code Ann. 32-1-104:

(a) The execution of a will, other than a holographic or nuncupative will, must be by the signature of the testator and of at least two (2) witnesses as follows:

(1) The testator shall signify to the attesting witnesses that the instrument is the testator's will and either:

(A) The testator sign;

(B) Acknowledge the testator's signature already made; or

(C) At the testator's direction and in the testator's presence have someone else sign the testator's name; and

(D) In any of the above cases the act must be done in the presence of two (2) or more attesting witnesses.

(2) The attesting witnesses must sign:

(A) In the presence of the testator; and

(B) In the presence of each other.


Where's the notary?  There's no notary mentioned here, and yet folks often think that by signing and notarizing their Tennessee will, it's valid.  It's not.

The notary comes in here:

Tenn. Code Ann. 32-2-110:

Any or all of the attesting witnesses to any will may, at the request of the testator or, after the testator's death, at the request of the executor or any person interested under the will, make and sign an affidavit before any officer authorized to administer oaths in or out of this state, stating the facts to which they would be required to testify in court to prove the will, which affidavit shall be written on the will or, if that is impracticable, on some paper attached to the will, and the sworn statement of any such witness so taken shall be accepted by the court of probate when the will is not contested as if it had been taken before the court.

This is what's known as the "Self Proving Affidavit". 

What's the point?  If you have purchased a will online, it must comply with Tenn. Code Ann. 32-1-104 to be valid.  It's smart to have a Self Proving Affidavit accompany this document as mentioned in Tenn. Code Ann. 32-2-110.

If your estate and/or your wishes aren't worth paying an attorney to assist you with this, then simply write a "Holographic Will".  That means "handwritten". So, handwrite it entirely, sign it, date it, and put it where two (2) people who recognize your handwriting can find it.

Regarding a handwritten will, 

Tenn. Code Ann. 32-1-105:

No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator's handwriting must be proved by two (2) witnesses.

That's it!  Don't get cute and type it.  It does not need to be notarized.  It does not even need to be dated, BUT, not dating it could cause a lot of problems if there's any other will out there, or you do another one later.  

Remember, don't the person who leaves a mess, unless that's what you want your legacy to be. 

I hope that helps.  Questions? Comments?

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