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Many lay people believe that a last will and testament controls what happens from the moment the person who signed the will (“the testator”) passes away. In fact, a will has no legal effect whatever until it is probated. The probate court must determine that the will was valid before the terms of the will have any effect.

Moreover, a person who decides to administer an estate without going through the proper probate procedure can put themselves personally at risk. A court could hold that person liable for their actions.

It is wise, therefore, for close family members (or the delegate of the family) to contact a lawyer to begin the probate process. The lawyer will want to know right off the bat all the details about the assets that belonged to the deceased person (“the decedent”).

The first step is to pull together the information that the lawyer will need. Search the desk or any other place that documents were kept in the decedent’s home. If he or she had an office, search that place as well.

Look for the original will. If you cannot find the original, locate a copy. Hang onto copies of all prior wills if they are still in existence. Look for the original or copies of deeds to real property, life insurance contracts, car titles, and documents about any other assets.

A Tennessee statute requires banks to permit relatives, the executor named in a copy of a will, or anyone authorized by court order to open a safe deposit box (with a bank employee present) and remove a will, a contract of life insurance, or any document relating to a burial plot or burial instructions.

Family members should look for tax returns or check with the decedent’s accountant about tax returns. Returns can help locate assets, especially if the assets generated income or deductions.

Family members should keep everything that comes in the mail to the decedent. There should be bank statement, statements from retirement accounts, and bills from creditors.

The internet has resources that can help locate assets. The tax assessor’s office, for example, may have information about real property.

Finally, if it’s possible, given the limitation of password protections, family members can search the decedent’s computer and email to try to locate assets.

Accumulating all this information can make working with a lawyer easier and less expensive. Generally, the lawyer does not have access to most of this information, and it will ultimately fall back to family members in any case.

Either before or after you gather up all the information, contact a lawyer who is experienced in the probate process. You may find that, because of the type of assets, there will be no need to probate the will. Even if you must go through probate, the process is relatively uncomplicated and speedy in Tennessee.

Our firm has substantial experience in guiding our clients through the probate process. We can help you make a cost-effective decision about whether you need to probate a will and, if so, can help you navigate probate with a minimum of time, effort, and attorneys’ fees.

We encourage our clients to make plans for their healthcare by executing two documents:  1) a healthcare power of attorney which appoints someone to make decisions and 2) an advance directive that lets our clients choose what end of life care, such as CPR and tube feeding, they want.  Fortunately or unfortunately, with the advent of antibiotics and tube feeding, doctors can keep us alive into the land of no-life and no-death.

In addition to these documents, in Tennessee, with the cooperation of a treating physician, a Physician’s Order for Scope of Treatment or “POST” order can be entered that accompanies the patient even when transferred.  The doctor and family together can specify that they do not want the patient to be resuscitated.

The question, of course, is whether medical personnel will honor an advance directive or POST order.  I have know several instances in Nashville where the documents have not been honored.

That may be about to change.  A recent article in the New York Times states that doctors who override patient’s end-of-life wishes are increasingly facing legal action.  The article is instructive, describing a case in Maryland and referencing several cases across the country.  For those of you who are interested here is the article.  https://www.nytimes.com/2017/04/10/health/wrongful-life-lawsuit-dnr.html?_r=0

The percentage of older people with dementia is on the decline, even though a cure for this devastating condition remains elusive. Based on surveys of 21,000 older adults, University of Michigan found the dementia rate among older Americans fell from about 12 percent in 2000 to roughly 9 percent in 2012. That translates to about 1 million fewer Americans suffering from the condition. The reasons for this unexpected drop aren’t clear. Scientists speculate that more people are receiving effective treatment for conditions linked to dementia, such as diabetes and high blood pressure, both of which can impair blood flow to the brain. It’s also possible that a climb in the average education levels of older adults plays a role: Previous studies suggest that higher learning creates more complicated connections between nerve cells, which may help protect the brain against cognitive decline. But while the risk for dementia may be decreasing slightly, study author Dr. Kenneth Langa warns that the total number of Americans with dementia will continue to climb as the massive baby boomer generation moves into its 60s, 70s, and 80s. “This is still going to be a top-priority issue for families, and for health policy, now and in the coming decades,” Langa says.



Brenda Butka is a Nashville physician and has written this beautiful poem about the difficulty of letting go.

Do Not Resuscitate

JAMA. 2012;308(16):1613. doi:10.1001/2012.jama.11596
 I can say
your father is dying.
I can say
wishing will not make it so,
belief doesn’t change a thing.
I can say
love does not conquer all,
miracles are pretty stories told in church,
the movies you saw as a child are lies,
blind hope is not a recipe for success,
underdogs usually lose,
death is not the worst thing, it is just
the last thing.
But for you that is not true.
I can say
we have to pretend
that we can bring him wheezing
back to you like an old accordion,
chest pleating in and out,
singing his customary songs,
oxygen bumping its hurdy-gurdy way again
through his ancient heart.
But how can I tell you how
someone will shout down the hallway, kneel
frantic on the bed,
lean his fists against that old breastbone, sharp, frail,
one onethousand, two onethousand, and count it out.
I can say
we should not do this.
He will never be the same.
I can say
if it were my father.
I can say
do not confuse resuscitation
with resurrection, although
neither works particularly well.
You look like you are drowning,
pallid and slow in the waiting room’s
underwater light.
So. Tell me.
Tell me again.
Tell me about your father.

You might be surprised to find out!  Check out this website for the answer.  http://www.aarp.org/money/taxes/info-2016/celebrity-estate-mistakes-photo.html?cmp=SL-DSO-OUTBRAIN-MOB-MONEY-MONEYRSS-MIXED-CPC_9+Celebrities+Who+Made+Errors+While+Estate+Plannin_1318869602_5710575#slide1