News and Thoughts on Issues in Georgia Regarding Wills, Living Trusts, Guardianship, Advance Directives, Living Wills, Healthcare Powers of Attorney, Probate, Estate Planning and More by Marietta and Atlanta, Georgia, Family Lawyer Stephen M. Worrall
I’m not sure there are official statistics for this, but based on my years of experience as an Atlanta wills and trust lawyer, the number one reason people don’t do their estate plan is that they simply can’t face their own mortality.
In a way, we are like the groundhog…occasionally we stick our heads out of our warm, protected, cave of ignorance to think about what would happen to our family if something unexpectedly happens to us. In regard to estate planning, are you the type to peek-out, see your shadow, and go back in to your safe and warm bunker and hide type of person? Or do you step out and face the day and charge full steam ahead?
Interestingly enough, the tradition of the groundhog being afraid of seeing his shadow is a recent phenomenon. The tradition started as a medieval superstition that all hibernating animals (not just the groundhog) came out of their caves and dens to check the weather in early February. If the animal could see their shadow, it meant winter could go on for another 6 weeks which meant they could go back to sleep. A cloudy day meant spring was just around the corner and they could venture out. As you can see, shadow didn’t “scare” the animal back into the safety of their den. It was simply an alarm clock of sorts!
So with that myth dispelled, I also want you to stop using the fear of your mortality as a reason for postponing doing your own will or trust.
Simply think of estate planning as a way to ensure that your legacy will go to the people you want, in the way you want, when you want. It will also allow you to save your loved ones court costs, attorney’s fees and most importantly, will allow them to mourn your loss without the additional burden of dealing with government red tape, a chaotic court system and financial confusion.
So, as we see all the news and excitement surrounding Punxsutaney Phil this year, take a long look at yourself and see if you are ready to make sure your family is taken care of no matter what. If your plans are sorely lacking, I invite you to give me, your neighborhood Atlanta will and trust lawyer a call to discuss your options.
By simply mentioning this article, you can come in for a Georgia Family Treasures Planning Session (normally $750) at no charge. Call 770-425-6060 to reserve your space today.
As a wills and trusts lawyer in Atlanta, it’s easy to see why so many people put off writing their will. After all, no one really wants to think about their own death, let alone prepare for it. In reality, though, preparing by creating a will is exactly what we should all be doing. There are plenty of reasons to consider, and any reputable wills and trusts lawyer will be able to go through the list with you to ensure that you are protecting your assets and the people you love.
Despite not wanting to think about death, the reality of it is inevitable. If you have not prepared by writing a will, then you are risking both your own wishes and the outcome for those you love. This may be especially important for parents.
If you haven’t put together your will, then your children’s future can be in serious jeopardy. For example, you may assume that your property would simply pass on to your kids, but the courts may have other ideas. Additionally, other family members (such as a new spouse) may step in and take things that you intended for your children.
The most extreme example, however, likely comes along with guardianship. In order to ensure that your children are raised in the fashion you deem appropriate, you need to specify their guardians. This is done through the will, and the best way to make sure your wishes are known is to work with a wills and trusts lawyer now, before the issue is completely out of your hands.
Some Atlanta residents feel that they don’t need a will simply because they are married. They assume that if they were to die, their assets, property, children, etc. would automatically pass to the spouse. In some rare cases, this may not be true, as others may have a legitimate claim to an inheritance when a will hasn’t been written. It is heartbreaking to know that your spouse may not be the beneficiary of those things you most want him or her to have.
Of course, there’s also the possibility of both spouses being killed at one time. In situations like that, there is no surviving spouse to speak up for the children or to have a say in the distribution of assets. Again, the courts will have a much bigger say in the outcome of your estate than you would probably like.
Creating a will doesn’t have to be an overly-complicated activity, although it makes sense to consult with a good wills and trusts lawyer to ensure you are covering the basics and fulfilling any legal requirements applicable to Atlanta residents. While it’s certainly not ideal to spend time imagining what would happen to your family and assets after your death, doing so now can make an incredible difference later.
I was interviewed this week on Atlanta’s NPR station, WABE 90.1FM, on the subject of making sure that all parents have a plan in place should an emergency strike during school hours. These preparations should include naming short-term guardians, listing the right people on school emergency cards and leaving detailed instructions with babysitters to avoid involvement with social services.
The shorter version that aired today, Wednesday, July 27, 2011, can be heard here:
Now that your graduating senior is “legally” an adult, you can no longer make important medical or financial decisions on his or her behalf?
UNLESS you have these 3 things in place…… (see below to discover how EASY it is to legally intervene if your child is injured or otherwise unable to speak on his or her behalf!)
Your graduating senior may still be your baby, but in the eyes of the law he or she is now an ADULT!
That means you can no longer make important medical or financial decisions for your child without their permission.
But let’s face it….your job of being a PARENT doesn’t stop just because your child turns 18. If there’s a medical emergency or your child asks for financial help, you NEED the ability to cut through the legal red tape and get involved.
FACT: Doctors, hospitals or financial institutions will NOT bend the rules on this! It’s against privacy laws. You must have 3 KEY DOCUMENTS in place to make important medical or financial decisions on your child’s behalf (just imagine the nightmare of your child getting hurt hundreds of miles away at school and the hospital refuses to give you so much as a status update!).
I call these 3 key documents the Parent Sanity Protection Kit, as they give you the legal permission you need to HELP your child and avoid more gray at the same time!
Advance Health Care Directive
Financial Power of Attorney
HIPAA Forms
This Parent Sanity Protection Kit is normally $350, but to ensure your child is protected before the summer or college starts, you can now receive this critical kit for just $150 when you call 770.425.6060 and schedule your appointment by June 15th.
Graduation Gift for YOU, too, Moms and dads: Mention this blog post and receive a FREE Georgia Family Treasures Planning Session (normally $750) to go over YOUR will, trust or other legal documents! Having an “adult” child is a huge life-change for mom or dad too and your estate planning documents must be updated accordingly!
As a Marietta estate planning lawyer, I know how common it is for each generation to avoid planning for their deaths. Few people are eager to spend time thinking about their own mortality, including the parents that raised and cared for us. Unfortunately, not spending a little time with an Marietta estates lawyer can end up costing more than just a little time.
Discussing estate planning with your parents can be tricky. Neither of you wants to think about the fact that they will one day pass away. Not only that, but you likely don’t want to look greedy or uncaring. That’s why you should approach the topic in a way that lets them know you have their best interests at heart. Here are two important things to keep in mind:
1. Estate Planning Protects your Parent’s Legacy
One of the most important things to remember when you’re discussing an estate is that it will be your parent’s legacy. It is not the only way they’ll be remembered, but it does give them the opportunity to have a say in what becomes of the assets they worked so hard to acquire. An experienced estate planning lawyer will be able to show them more options than they likely ever realized were possible.
2. Estate Planning Protects the Beneficiaries
Just because you’ve grown and gone out into the world doesn’t mean that your parents don’t still feel the need to “parent” you. Taking the proper steps to plan their estate means that they can lessen the burden on their children and grandchildren at what is sure to be a difficult time. Let your parents know that you want to follow through on their wishes, and by planning in advance, you can make sure that happens.
Acknowledging that our parents won’t always be here is a difficult thing to do, but it is a necessary part of preparing for the future. By introducing the topic in terms of protecting their legacies and their beneficiaries, it is possible to turn the conversation into one of empowerment. Once the subject has been brought out into the open, it’s best to take steps to speak with an experienced Marietta estates lawyer to make everything official.
Estate planning is incredibly important for all parents, as it allows them the opportunity to make very difficult choices. It provides the chance to determine who will raise your minor children if you can’t, what money will be set aside or used for their upbringing, and even what money will be used to support them as adults. Each of these choices can become even more difficult when the child has disabilities, especially if he or she is receiving some type of government assistance. This is where working with an Atlanta special needs planning attorney comes into play.
A special needs planning attorney is familiar with the most common choices faced by parents of children with disabilities and can offer advice and suggestions on how to plan for that child’s care. They also understand the ramifications of inheritance when it comes to eligibility for government assistance. Here in Atlanta, as in other places across the country, planning tools such as a special needs trust or supplemental needs trust must be set up a very particular way in order to meet government standards and allow for the continuation of other benefits.
However, special needs planning is not just about maintaining government support. It also protects the disabled individual from lawsuits and other debts, as the trust cannot be seized in order to pay these. This protects the trust and the individual who relies upon it for his or her ongoing care.
An Atlanta special needs planning attorney will be familiar with how local, state, and federal laws interact in order for parents to put together a plan that best protects their child. It is highly recommended that you seek out a lawyer who specializes in special needs trust planning. He or she will help set up your child’s trust, as well as explain all the details such as how a trustee will manage the assets for the beneficiary.
If you are ready to get started in creating a plan that makes sure your disabled child stays physically and financially protected if something happens to you, I invite you to give our office a call at 770-425-6060 and schedule a Georgia Family Treasures Planning Session. These sessions are normally $750, but we’ve made space for 10 area families to come in this month absolutely free of charge. Simply call 770-425-6060 to reserve your free planning session today.
I have a Special Needs Fredom Guide available for parents of children with special needs. You can request it here. Learn How to Take Charge of Your Child’s Future and Build a Fortress of Protection that Will Last a Lifetime! Get Insider Tips To Make Your Life Easier!
I’m not sure there are official statistics for this, but based on my years of experience as a Marietta wills and trust lawyer, the number one reason people don’t do their estate plan is that they simply can’t face their own mortality.
In a way, we are like the groundhog…occasionally we stick our heads out of our warm, protected, cave of ignorance to think about what would happen to our family if something unexpectedly happens to us. In regard to estate planning, are you the type of peek-out, see your shadow, and go back in to your safe and warm bunker and hide type of person? Or do you step out and face the day and charge full steam ahead?
Interestingly enough, the tradition of the groundhog being afraid of seeing his shadow is a recent phenomenon. The tradition started as a medieval superstition that all hibernating animals (not just the groundhog) came out of their caves and dens to check the weather in early February. If the animal could see their shadow, it meant winter could go on for another 6 weeks which meant they could go back to sleep. A cloudy day meant spring was just around the corner and they could venture out. As you can see, shadow didn’t “scare” the animal back into the safety of their den. It was simply an alarm clock of sorts!
So with that myth dispelled, I also want you to stop using the fear of your mortality as a reason for postponing doing your own will or trust.
Simply think of estate planning as a way to ensure that your legacy will go to the people you want, in the way you want, when you want. It will also allow you to save your loved ones court costs, attorney’s fees and most importantly, will allow them to mourn your loss without the additional burden of dealing with government red tape, a chaotic court system and financial confusion.
So, as we see all the news and excitement surrounding Punxsutaney Phil this year, take a long look at yourself and see if you are ready to make sure your family is taken care of no matter what. If your plans are sorely lacking, I invite you to give me, your neighborhood Marietta will and trust lawyer a call to discuss your options.
By simply mentioning this article, you can come in for a Georgia Family Treasures Planning Session (normally $750) at no charge. However, this offer is limited to 10 this month so call 770-425-6060 to reserve your space today.
According to Marietta elder law attorney, Steve Worrall, Alzheimer’s and Dementia awareness week (February 14th –21st) is the perfect time to have ‘tough conversations’ with aging parents about their wishes and plans should the disease ever strike.
Marietta, Georgia -
“Does mom want to live in a nursing home?”
“Does dad consider living with Alzheimer’s or Dementia to be quality of life?”
“Is there legal documentation in place that ensures someone can act financially on mom or dad’s behalf if they are unable to?”
These are just three of many questions that experts are urging adult children to ask their parents during Alzheimer’s and Dementia Awareness Week (February 14th- 21st). Without the answers to such questions, families could be left battling over long-term care, struggling financially and not truly honoring their parent’s wishes should the disease unexpectedly strike.
“So many families avoid talking about Alzheimer’s or Dementia until it’s too late,” says Marietta elder lawyer, Steve Worrall. “Especially from a legal standpoint, if you don’t know your parents’ wishes or the documentation they have in place, you could be left with a huge mess on your hands in the wake of this debilitating disease”.
According to Worrall, there are 5 specific conversations adult children should have with their parents as soon as the opportunity presents itself. They comprise the following:
1. Long-term care preferences- Does mom or dad want to live in a nursing home or would they prefer in-home care if the need presented itself? If they prefer a facility, what amenities and activities are important to them at this point in their life? These are questions that if discussed in advance can make the transition into an assisted living facility or a home-health care program much easier on everyone when the time comes.
2. Current Legal Documentation- It’s imperative that adult children find out what legal documentation their parents have in place before incapacity occurs. This includes making sure their parents have a power of attorney, health care directive and HIPAA forms so someone can easily step in to make financial or medical decisions on their behalf. Otherwise the family will be forced to petition a court for control over their parent’s affairs if they have passed the point of legal capacity.
3. Medical Preferences and Wishes- Adult children are urged to find out what type and how much medical care their parents want after receiving a diagnosis of Alzheimer’s or dementia. Do they have specific wishes about life support or other end-of life medical treatments? Who do they want to make such decisions on their behalf? The answers to these questions will help your parents to feel secure knowing their wishes will be carried out during an otherwise emotionally-charged time.
4. Current state of financial affairs- To ensure finances stay properly managed after a diagnosis of Alzheimer’s or Dementia, adult children should use this week to start asking tough questions about their parent’s financial affairs. This includes finding out the location of any safety deposit boxes, bank accounts, investment or brokerage accounts, outstanding debts or other assets unknown to the family. Otherwise, necessary assets needed to cover long-term care or other expenses could be overlooked when memory loss ultimately occurs.
5. Important contacts and information- While their memory is sharp, adult children should work with aging parents to compile a list of important contacts and information that will be useful to the family if memory loss occurs. This includes documenting key doctors, professional advisors (ie. accountant, attorney, financial advisor) and important passwords for online accounts.
“While these conversations are certainly not easy to have, families can make the transition into living with Alzheimer’s or Dementia much easier by simply planning ahead,” says Worrall. “Not to mention, mom or dad will appreciate your willingness to make sure their wishes are honored if and when incapacity occurs”.
Resolving to get your legal affairs in order is one of the most important things you can do to make sure your family, wishes and assets are protected if something unexpectedly happens to you this year.
Marietta, Georgia- While many people focus on getting out of debt or getting organized for the New Year, estate planning is an equally important personal finance goal that should make every adult’s to-do list.
That’s because according to Marietta estate planning lawyer, Steve Worrall, far too many area residents are without plans to protect their family, wishes and assets should something unexpectedly happen to them. A recent Lawyers.com survey further reveals that only 35% of adults have a basic will or other estate planning documents in place should death or incapacity occur.
“Contrary to popular belief, estate planning isn’t just for the rich,” says Worrall. “At a bare minimum, every adult needs a basic will, power of attorney and health care directives in place to avoid a legal and financial nightmare if something unexpectedly happens to them,” he adds.
So what are these documents and how do they help you in a time of emergency? Worrall explains the following:
Will- A will is a document that specifies what should happen to your assets if you pass away. A will may also contain guardian nominations to dictate who will care for your minor children if something unexpectedly happens to you.
Trust- A trust is a legal entity that can hold title to property. With your assets securely placed in a trust, you can minimize your financial exposure to lawsuits, divorce and bankruptcy while alive. Upon death, a trust will keep your affairs private and out of the probate court. It also allows a great deal of control for people who do not want their inheritance going outright to their heirs if something unexpectedly happens.
Power of Attorney- A power of attorney or POA gives explicit permission for someone to access your personal accounts, pay your bills and handle all other financial and legal affairs if you are incapacitated in an accident but do not die. Under the current privacy laws, even a spouse may have a hard time accessing personal information without such documentation in place.
Advanced Health Care Directive- Also known as a living will, this document specifies your healthcare wishes if you are incapacitated in an accident and unable to speak for yourself. Such wishes may range from whether you want certain medications administered to when (if at all) to start life support in critical situations. This document also allows you to appoint the person best suited to carry out such wishes should incapacity occur.
“Accidents and serious illness happen every day without warning,” says Worrall. “That’s why it’s so important for any adult who has not tackled their estate planning to add it to their resolutions this year. It will save their family from years of headaches and thousands of dollars in unexpected costs should the unthinkable happen”.
About Steve Worrall
Stephen M. Worrall is an experienced family law and wills, trusts and estate planning attorney in Marietta and Atlanta, Georgia. He concentrates his practice in all areas of family estate planning, including including wills, trusts, guardians for minor children and incapacitated adults, probate and trust administration, and all areas of family law, including divorce, adoption and prenuptial agreements. He also helps families plan to protect their assets and their children in the event of their death or incapacity, and to transfer their whole wealth – their financial, intellectual, and spiritual assets – to their loved ones.
If one of your New Year’s resolutions this year includes getting your financial and legal affairs in order should something unexpectedly happen to you, I have a gift I think you’ll enjoy.
To be specific, I just put the finishing touches on a free report I wrote entitled, “What You Don’t Know CAN Hurt Your Family: 5 Easy Ways to Make Sure Your Children, Wishes and Assets Stay Protected Should Something Happen to You”.
In this report you’ll learn 5 easy ways to get your legal and financial affairs in order, just in time for the New Year. You won’t even need the help of an attorney for some of these important steps; simply follow my instructions in the guide and cross each item off of your “to-do” list as you go.
You’ll also discover:
How to legally name guardians for your minor children in a way that will hold up in a court of law
The difference between a will and a trust, and which tool you really need to make sure your family, wishes and assets stay protected upon your passing.
The details about simple document you can use to give someone legal permission to act on your behalf if you were incapacitated in an accident but did not die (…and without this document, no one will be able to help you under the current HIPPA laws!)
How to amass your “entire family wealth” and leave a true legacy to your children (hint: you don’t have to be wealthy and it’s easier than you think!)
And so much more!
To grab a copy of this report, simply visit http://bit.ly/gNUxIJ.
I’d also like to encourage you to forward this to any of your family or friends who really need to get their affairs in order just in time for the New Year. I would especially encourage you to reach out to anyone who has minor children, owns their own home, cares for aging parents or is approaching retirement age themselves.
Again, you can get a copy of this free report now by going to http://bit.ly/dGpJM1.
By Steve Worrall, Atlanta wills and estates lawyer
Perhaps you saw it on the news a few weeks ago that economists on Wall-Street declared the recession officially over.
I’m not sure how they came to such conclusions, but I look around and still see far too many friends and family struggling to recover from the chaos to really consider it over. And while I acknowledge things may be improving on some fronts, I still find it hard to objectively look at a father who can’t find work or a mother who’s lost a huge chunk of her 401(k) plan to say our Country is officially in the clear.
I’m equally saddened by the number of bankruptcies taking place right now. For many families, bankruptcy is the only way to break free from the mountain of debt that constantly rests on their shoulders. Of course that’s not to say this decision is ever taken lightly by those who file, as the consequences of bankruptcy are long-lasting and sometimes severe—especially if you stand to inherit money.
Let’s say for example that you had a family member pass away who left you a cash gift in their will or trust. On the surface it seems like this would be a much needed and timely relief for a family going through bankruptcy. However, Federal bankruptcy rules declare that if you inherit money from a person who dies within 180 days of the date you filed for bankruptcy, you must tell the courts. In simple terms, that means the inheritance now becomes a part of your bankruptcy estate and will be distributed to your creditors as the courts see fit.
This also applies to items that you may inherit such as cars, jewelry or furniture. All of these items are subject to the administration of the bankruptcy estate. However, this doesn’t mean that items like this are certain to go up on the auction block. You can claim exclusion on certain things and the bankruptcy trustee has a certain amount of discretion in choosing what to liquidate. However, it can be extremely stressful to think about a family heirloom that has been in your family for years going to your creditors.
Hopefully your loved one had an Atlanta wills and estates attorney who knew a thing or two about protecting their inheritance from things like bankruptcy, creditors, divorce and the like. Ideally, your loved one would have been advised to set up a trust so any inheritance passed down to their family members would be out of reach from creditors and the courts. If they did not, and you have not filed bankruptcy yet, this may still be an option if your loved one is willing to have their plan looked at by a qualified Atlanta wills and estates attorney.
Planning to avoid giving your hard-earned wealth to creditors is not illegal or immoral either. You should think of it the same way you would when considering tax planning. Tax planning is fine, but tax evasion is not. The difference is whether you play by the rules and are honest. For example, not telling the courts you received an inheritance is illegal and you could face serious consequences. However, you are not skirting the rules if you are the recipient of a spendthrift trust. That wasn’t your choice.
If you or your loved one needs help facilitating such a trust to protect your inheritance from the claims of creditors, simply call our Atlanta and Marietta GA wills and estates office at 770-425-6060 to schedule a Georgia Family Treasures Planning Session at no charge ($750 value). We will walk you through the necessary steps that must be taken to protect your inheritance from a bankruptcy filing or any other creditor’s claim. However, these appointments are limited to 5 per month, so call today.
The face of the American family is changing. As an estate planning lawyer in Atlanta, Georgia, I have certainly seen that change.
Since 1970, the number of what are considered “non-traditional” families (i.e., unmarried opposite sex couples, same sex couples, single parents with minor children and single adults with neither children or a partner) has more than doubled.
And now, with the divorce rate at almost 50%, more and more people are either on their second marriage, getting married later, or have children from previous marriages.
These changes in the structure of the American family have given rise to the need for estate planning options and considerations that had never really been talked about before the 1990’s.
If your life situation falls under the umbrella of the “non-traditional” family, here are a few things you need to take into account when you’re considering estate planning:
1. Marital Status and Your Estate
If something happens to you, your surviving spouse often has a statutory right under state law to receive property from your estate in spite of a valid enforceable will that says otherwise. The key word in this scenario is “spouse”. The person taking from the estate must be considered a spouse under state law. Domestic partners are not entitled to this right (unless your state allows you to register as domestic partners by statute and you have legally registered; Georgia does not have this option at the time of this article).
2. Understanding the Definition of Family Members
Whether or not your partner can be considered a spouse for a specific purpose is determined by state law. For example, in some cases a person can be deemed a spouse for purposes of collecting health insurance benefits from your employer, without being considered your spouse for any other reason. However, state laws with regard to certain benefits are changing rapidly, many in response to the changes in what constitutes a family relationship. Check with your estate planning lawyer to see what the current situation is in your state.
Adoption issues are another area to give serious consideration in your estate plan. In many cases, an unmarried partner has no legal rights or obligations in relation to the other partner’s children if they are not the child’s natural parent or have not legally adopted the child. They are not defined legally as a parent. And the length of time the unmarried partners have lived together makes no difference. Make sure to have provisions for the care of your children in your estate plan and that your wishes are legally enforceable.
3. Property Rights
Every state has laws that specifically deal with the rights, privileges and duties associated with marriage when it comes to real property. While some states are adding statutes to deal with the relationship of domestic partners, most unmarried couples don’t have the same rights and privileges as married couples. That is true in Georgia.
One way to establish a legal relationship between the unmarried partners and provide for legal treatment and transfer of property is through a relationship agreement between domestic partners. If permitted by state law, the agreement can be enforced as a contract and address a multitude of estate planning issues including signature authority, asset disclosure and values, life insurance, health and disability insurance, and the transfer of property. If the agreement is treated as a partnership, it can provide enforceable inheritance rights.
As American society and its view of what constitutes a “family” continues to evolve and change, we will need to be more and more creative in dealing with estate planning and tax issues to make sure that everyone receives the appropriate planning assistance. Talking to a trained estate planning lawyer to make sure all your bases are covered is the best place to start.
If you are a member of a “non-traditional” family and would like to know more about how to provide for your loved ones if something happens to you, call us to schedule your Georgia Family Treasures Planning Session today. We can explain your legal rights and help you plan properly. Our Georgia Family Treasures Planning Session is normally $750, but this month I’ve made space for the next two people who mention this article to have a complete planning session with me at no charge. Call today and mention this article.
The one night a week when you and your spouse spend time together…talk about the week…have a nice leisurely dinner…just the two of you.
You’ve lined up a babysitter…
You left money for the pizza delivery guy and a list of contact numbers on the refrigerator door…right under the magnet you bought in Yosemite last summer…
You’ve got everything taken care of…
Except what happens to your children if the unthinkable happens and you never make it back home.
If you have minor children and you’re severely injured or worse in an accident, the police may have no choice but to place your children with Child Protective Services if they don’t have information or documentation indicating who you would want to care for your children.
Once the immediate situation has passed, your children could then be at the mercy of the “system”. There is no way the State can know who would be the best choice as a guardian for your children.
So…what do you need to do?
First, Put Your Guardianship Wishes in Writing
Just telling your chosen guardian that you want them to take care of your children is not enough. What you “said” is not legally sufficient and you could be placing your children at the mercy of the foster care system for a long period of time. You need to have a plan in place, written instructions, and the proper legal documentation in order to ensure that your wishes are followed and that everyone knows what those wishes are.
Another misconception is that if you name a guardian in your Will, that’s all you have to do.
Wrong.
A guardianship provided for in a Will only takes effect after you die. If you become incapacitated but are still alive, it means nothing.
Proper Documentation for Guardianship
A good, solid guardianship plan will allow you to choose guardians either on a permanent or temporary basis and leave instructions for those guardians so they know exactly what you want them to do and under what circumstances.
You need to have at least these documents in place at all times if you have minor children:
1. Legal documentation naming a short term or temporary guardian in case you become incapacitated for a short period of time, or in the interim between your death and the time your permanent guardian can arrive. The best option for this guardianship is someone close by that can take immediate custody of your children and keep them out of the court system. Make sure that you talk to these individuals about your plans and that they are willing to serve as temporary guardians. Have their names at the top of a contact list that is available immediately in the event you are not able to communicate. And always make sure they have a copy of the documents naming them as temporary guardians.
2. Legal documents naming permanent guardians. The same information applies for this document as for temporary guardianship papers. Make sure you talk to the people you select and that they have copies of these documents to provide to the court.
3. Make sure you have written instructions for anyone taking care of your children so they know exactly what needs to be done if something happens to you. Make sure they know who to call. Even if you’re leaving your kids with the 16 year old kid next door to babysit on Friday night, make sure she or he knows what needs to be done if the worst happens. And always have written instructions in place for the person or persons you choose as a guardian to tell them how you want your children to be raised.
4. Always have a Medical Authorization and Power of Attorney for your children, especially if you’re sending them to Grandma’s on their own. These documents will allow the person taking care of your children in your absence to make medical decisions that could be a matter of life and death.
Really makes you think, doesn’t it?
He said/She said will not hold up in court, so if that is the only plan you’ve made for your chiildren if the unthinkable happens, you could be placing them at the mercy of the foster care system without even realizing it.
If all this has made you realize you would like to get your documents in order to make sure that your children and your property are taken care of, call us to schedule your Georgia Family Treasures Planning Session today. We can identify what you need to do to plan for your family’s future and answer any questions you have about an effective estate plan. Our Georgia Family Treasures Planning Session is normally $750, but this month I’ve made space for the next two people who mention this article to have a complete planning session with me at no charge. Call today and mention this article.
By Steve Worrall, Atlanta, Georgia estate planning attorney
As an Atlanta and Marietta estate planning attorney, I know Generation Y has a lot to think about…starting their careers, buying their first home, starting a family. All of these things are beginnings, so it’s a rare day when someone in this generation wants to think about The End. But there are 4 reasons that they might need to…
A lot of people think that youth is an excuse for putting off doing a will or trust. But estate planning is not just about planning for your death. It is also prepares you in the event you experience an incapacitating injury and are unable to make your own financial or medical decisions. While the odds are certainly in your favor that you will not need an estate plan, you should still consider these four scenarios…
1. You need a plan in the event that you become disabled or incapacitated. Unfortunately tragedies happen every day. And you are not immune to them because you are young. If something happens to you and you are no longer able to make decisions regarding your own financial, legal, and medical affairs you’ll need to make sure that there are basic documents in place such as a medical directive, power of attorney and HIPAA authorization so someone can.
2. You need to pass your assets. You might be asking, “What assets?” Even if you do not yet own your own home, you need to consider IRAs, retirement accounts and life insurance accounts offered through your employer. You need to make sure that beneficiaries are named in the right way to make sure that the people you want to leave them to get maximum benefit.
3. You need to name guardians for your kids. If you have children, you simply must name guardians. You should be the one who decides who will raise them if you are no longer around. You do not want this decision left to squabbling relatives or to a court system who doesn’t know you or your child.
4. You need to plan for your pets. If you have a pet, chances are they are a big part of your life. They are totally devoted to you and also totally dependent on you. Have you stopped to think what might happen to them if something were to happen to you? If you want to make sure your companion is cared for if the unexpected happens, you could choose to put together a plan for their continued care. The plan may include directions about feeding, medical care and other needs along with funds necessary to provide for your pet’s support and to compensate the caretaker.
The scenarios above are just a few to consider when deciding if you need a will or trust. If you are in the Atlanta area, I encourage you to talk with an Atlanta and Marietta wills and trusts lawyer. Only then will you have the peace of mind of knowing that you are fully protected.
I must warn you: these questions are blunt and to the point: if you are a parent of minor children, protecting your family and being the best parent you can be means that you MUST have a comprehensive and up-to-date estate plan so they are prepared for a life without you!
One of my greatest passions as an Atlanta estate planning lawyer is educating parents about how important it is to prepare for their untimely death. Not a fun topic I realize. But it just takes one sad circumstance of parents passing away and leaving the kids to deal with squabbling relatives to understand how critical this is for their well-being.
The possibility of leaving this world can be difficult to accept and many people choose to not think about it. Unfortunately, this fear often prevents people from taking the proper precautions they need to take.
I speak at various groups around Marietta, Cobb County and in Atlanta and usually deliver this message in an upbeat and cheerful way so people can see that preparing their estate plan for their family is a positive and joyful experience. But for today’s post I’m going to give you the real-deal about Atlanta GA estate planning. Blunt, and to the point.
Essentially, it’s critical for everyone to understand the importance of estate planning for those we love – especially our children. As you can imagine, children are incredibly vulnerable if you die while they are still minors due to the simple fact that they are unable to take care of themselves.
Here are a few cold-hard facts about what could happen if you passed away suddenly without a will or trust in place.
1. A judge that doesn’t know you or your children will decide who raises them.
If something happens to you, who is going to step up? Is it the person that you want to raise your children? If you don’t have an estate plan in place, will your relatives squabble over who is or isn’t responsible for raising them? Do you really want to put your children through that?
2. The person who the judge picks to raise your kids will also be responsible for their financial well-being.
If something happens to you, all of your assets will be handed to the guardian (that you didn’t select) to be managed for them. The obvious fear is that this person could possibly use the funds for something other than the care of your children. However, there are many other things to consider. Does the person that the probate court judge picked have the same financial values that you do? For example, you may feel strongly that you would like your children to attend high-end sports clinics to help develop their athletic skills. But, will the guardian see the value in this? What if they think spending money on what you would have wanted is a total waste? The potential for trouble is endless.
3. All of the money left from your estate (assuming there IS any) may go to your child in a lump sum when he is 18 years old.
Think about this one. What would you have done if you had been handed a bunch of money at that time in your life? Scary thought, huh? The hard truth is that most 18 year olds are simply not mature enough to properly handle finances at that level. I have heard story after story of kids who should have been fine financially, but weren’t because they decided to buy cars and clothes instead of investing in their future by going to college. So sad!
So, there you have it - some cold, hard questions for you to ponder. My hope for those of you reading this is that you have already taken care of naming guardians for your children and put your estate plan in place and that you are keeping it up-to-date as the circumstances of your life change. But, if you are not, I would be happy to offer you a free Georgia Family Treasures Planning Session to start you on the path.
Don’t worry if you aren’t sure who you would pick as guardian. I’ll help you with that.
Don’t worry if you think you can’t afford planning. I’ll work with you on that.
Don’t put this off because you don’t have the time. Think about how your kids will spend their time if something happens to you and you haven’t made these decisions for them.
Call our Atlanta GA estate planning office today and make an appointment for a free Georgia Family Treasures Planning Session (value of $750) and you’ll experience a peace of mind that you didn’t even realize you were lacking.
I find as an Atlanta GA trusts lawyer that many people don’t realize the privacy issues that will face their family should they die without a living trust. That’s simply because upon your death, everything you are leaving behind to your loved ones automatically becomes a matter of public record—even if you have a will or other estate planning documents in place!
While this may feel like a huge violation from a privacy perspective, it also presents a safety issue to those inheriting your estate. There are a lot of unscrupulous people who prey on widows and other beneficiaries and try to separate them from their inheritance.
So why does the County make this information available to the public?
The lack of privacy is understandable if you know the true purpose of probate. One of the primary purposes of probate is to make sure the creditors of the deceased person have an easy way to collect any debts they are owed from their estate. For that reason alone, the probate process must be open and public.
This information is also made public so the creditors of your beneficiaries have notice that they are inheriting an estate. Under this scenario, the creditors could bring an immediate claim against your beneficiary, which may ultimately result in your beneficiary never receiving the inheritance you wanted to leave them.
However, to be clear, I am in no way advocating that debts go unpaid. In fact, you should instruct your executor to pay your debts. But, wouldn’t you rather direct how this process goes rather than leaving it to the courts?
One way to do that while simultaneously stopping the violation of privacy and loss of control of your estate is to create a living trust.
Unlike a will, a living trust is a private document that will not become a matter of public record because it does not have to be filed with the probate court. Therefore, you can name beneficiaries and provide gifts while still attaining privacy since only the trustees and those involved in trust administration will know the contents of a living trust. This means that no creditor of yours or your beneficiaries, no disgruntled relative, no scam artist, and no nosey neighbor will ever know the details of your financial history.
Remember, there are people out there who make a living preying on young or vulnerable people that have just inherited something from an estate. They troll these public records daily looking for victims of their next heist or scam. Fortunately, with a bit of planning, you can protect your family from such privacy violations that accompany the probate process. I recommend talking to your Atlanta or Marietta trusts lawyer about living trusts and how they can help your family if something unexpectedly happens to you.
Fortunately, we’ve made that process easier than ever by making 5 free Georgia Family Treasures Planning Sessions available this month to readers of our blog. Simply call 770-425-6060 and mention this article to reserve your spot. Your family will thank you for it.
You finally got around to making a will, so now you can rest easy.
You went online, found the forms, filled them out and you’re done. If anything happens to you, your loved ones are taken care of.
One less thing to worry about, right?
As an Atlanta and Marietta, GA wills and estate planning lawyer, I hate to cause you more sleepless nights, but just having a will is not the “be all and end all” of planning your estate.
Let’s clear up a few misconceptions about what your will actually does and doesn’t do:
This is What A Sound Georgia Will Actually Does
Your will distributes property that you own at the time of your death. You can divide up your property any way you choose as long as your state doesn’t prevent you from disinheriting a spouse or children. If you intend to do either of those things, you need to talk to a lawyer and make sure it’s even legal. If you have property that would legally pass outside your estate (things like joint property, life insurance, or retirement plans), you will does not provide for how those assets are distributed unless you’ve made them payable to your estate. Additional estate planning documents are required in order to do that.
Needless to say, there are various types of wills and they can be incredibly simple or terribly complex. A very simple will is called exactly that – a simple will. A will that establishes trusts is usually called a testamentary trust will. If your will leaves assets to a trust created during your lifetime, it is called a pour-over will. If you have either a testamentary trust will or a pour-over will, it should provide for property management and protection from creditors for your heirs and minimize their tax obligations on whatever property they inherit.
Aside from creating trusts and distributing property, you can also designate a guardian for your minor children. If your will is properly written and you’ve set up the right kind of trust and chosen the right trustee to handle your minor child’s estate, the need for court supervision will be limited or even eliminated. The same could hold true if you name an executor. Check with an attorney to ensure that you’re taking full advantage of the laws in your state and that these designations are made in accordance with those laws.
What Your Georgia Will Does Not Do
If you have any nonprobate property, such as real estate that would pass to a surviving owner, or an IRA or insurance policy payable to a named beneficiary, your will does not determine how those assets are passed on. These types of assets are governed by contract law. Just because you list them in your will does not ensure that they will be handled as you’ve requested. Always make sure that your beneficiary designations are up to date and in line with your intentions.
Other types of nonprobate property you will want to account for are any jointly owned property, trusts, annuities, and retirement benefits and life insurance, to name a few.
Makes filling out a form online and thinking you can sleep better at night a little less appealing, doesn’t it? A simple piece of paper will not necessarily ensure that everyone gets what you want them to have and that Uncle Sam doesn’t take more of what you’ve worked for than your loved ones receive.
If you would like an expert opinion on exactly how effective your current will is, or advice on actually drafting a will, call us to schedule your Peace of Mind Planning Session today. We can help ensure you take the right steps to take care of your loved ones if something happens to you.
Also, as part of our estate planning process, we will interview you about your specific wishes and what you want your family to know. We provide you with a copy of the interview so you can pass on the information you want your family to remember. We understand that it’s not just about the paper you leave behind, but the voice you leave behind. Our Family Wealth Planning Session is normally $750, but this month I’ve made space for the next two people who mention this article to have a complete planning session with me at no charge. Call today and mention this article.
If you are reading this Atlanta area probate and estate planning blog right now, chances are you concerned about what would happen to your assets, investments and total inheritance when you die. I am sure like most people, you want to leave an inheritance to your children in a way that’s safe, secure and free from the red-tape of probate.
Yet what most well-intentioned parents fail to understand is that it is the way their inheritance gets passed down to family members that can have detrimental and life-altering consequences—which are far worse than having money tied up in the Georgia probate courts.
For that reason, I want to share some of my knowledge as an Georgia probate lawyer and give you a brief overview of the 4 ways your inheritance can be passed down to your children and how you can ultimately protect your inheritance from impulse spending, divorce, bankruptcy or poor decision making with proper education and a bit of planning:
Outright Distribution: An outright distribution is just that, mom and dad die and the children receive their inheritance outright, in one lump sum. Simple, clean, but dangerous. Statistics show that an inheritance will be gone within 18 months of a child receiving it. And it does not matter how old the child is or how much the inheritance. If a child gets divorced or goes bankrupt, the inheritance could be lost.
Convenience Trust: With this arrangement, the inheritance is distributed to a trust, but the child can withdraw the trust assets at any time and for any reason, just by requesting it. There may be an independent trustee managing the trust, or the child may be their own trustee or co-trustee. Since no one can force the child to withdraw the income and principal from the trust, the convenience trust offers some creditor protection, and perhaps a mental barrier to withdrawing the trust’s assets, but not much else. This also can act as a separate property trust, so that the child's spouse cannot access the inheritance.
Step-Distribution: This method is a more commonly used way of leaving money to your heirs. It’s also known as the “speed-bump” approach. With this type of distribution, the inheritance flows into a trust, usually with an independent trustee, which is managed and controlled for the child. At certain intervals in the child’s life, a portion of the trust’s principal is released in a lump sum to the child. For example, one third of the principal is paid to the child at age 30, one third at 35 and the remainder at 40. They still have access to income and principal for health, education and other guidelines you structure, but you can leave your children a powerful message with this type of trust – “don’t blow the inheritance!” The idea is that if they blow it the first time, they may not get any future distributions. This may act as an incentive to the child to manage their money well, but it still adds little asset protection, and once the principal is gone, it’s out of the bloodline and gone forever.
Lifetime Trust: This type of trust holds and manages the child’s inheritance for the life of the child. An independent trustee is usually chosen to manage the trust and many times the child can serve as co-trustee. Principal and income may be distributed according to various guidelines and incentives that the parent provides in the trust document. These guidelines act as a spigot or faucet: adhere to the guidelines and philosophies of the trust and assets will flow; get into trouble and the trustee can turn the spigot off.
Once the child dies, any remaining assets in the trust can pass to the child’s heirs or other individuals or entities. The lifetime trust provides the most flexible vehicle for values-based legacy planning. It also provides the greatest degree of asset protection, including protections against divorce, bankruptcy and lawsuits such as malpractice or personal injury. This is by far the most popular choice of trust arrangements among my clients, as it provides the greatest amount of asset protection and guidance for beneficiaries throughout their lives.
So now that you have read the 4 most common ways to pass an inheritance on to family members, I encourage YOU today to get clear on how you would like your inheritance distributed when you die. Do you understand the potential consequences of turning your inheritance over to a child not ready for the responsibility? Are you concerned that your money or assets may one day be lost in a messy divorce or bankruptcy proceeding? Are you simply unsure of the best way to protect your money—and your children—when you die?
If so, I would like to extend the opportunity for you to schedule a Peace of Mind Planning Session ($750 value) at no-charge with our office. Here a Marietta GA probatelawyer will help you work through such hard questions and ultimately create a rock-solid plan for distributing your assets in a way that aligns with your core values, but also meets your children’s long-term financial needs.
However, we only have 8 such Sessions available each month, so call (770-425-6060) to immediately schedule an appointment with Marietta GA probate lawyer, Steve Worrall before they are all gone!
The following series of posts contain articles posted at Kaboose.com, featuring an interview with my colleague, Kimberly Hegwood. If you have any questions or want to speak with me about these issues, please call me at 770-425-6060.
We asked Hegwood a few questions that probably affect plenty of parents. Here are her answers:
1. How do I set up a will? Can I do it online or through an attorney? What are the pros and cons of both?
Kimberly: The best way to set up a will is by seeing an estate planning attorney. I can’t tell you that you need an attorney to draft a will for you. However, if you mess it up, then your family could spend tens of thousands of dollars trying to accomplish your wishes.
Your children are your most valuable assets. Do you really want to take a chance on forms that have not been looked at by an attorney? The counseling that goes into estate planning is very important. You may have a taxable estate, need asset protection, a special needs trust for a child, or many other issues that are not always in fill-in-the-blank forms. Do you know what the terminology is and if your forms are correct? An online or fill-in-the-blank form may be cheap, but you get what you pay for.
2. I have insurance money and I have set my child up as the beneficiary should something happen to my husband and me. How do we make sure it goes to our children in a productive way?
Kimberly: I'd say the worse thing you can do is designate a minor child as a beneficiary on insurance proceeds. A minor child cannot receive the proceeds. The insurance company will pay the proceeds to the registry of the court and your child will be able to get them at the age of 18. At this age, the money will be spent on things that your child wants but is almost never what they need. A kid I know inherited at 18 and used the first $5,000 to put new tires and a lift system on his truck. Smart kid but, at 18, still a kid.
The better plan is to designate your living trust, if you have one, or your estate if you don’t have a living trust, and make sure that your will has a testamentary trust in it. The trust, whether living or testamentary, can receive the proceeds and be used to take care of your child’s health, education, maintenance or support.
3. What if I trust my designated guardians to take care of my kids, but am nervous about them also being in charge of their money? How can I make sure they don’t use it for themselves or their children?
Kimberly: I always recommend that the child’s guardians are not the trustee of their money. Otherwise, it’s too easy for the guardian, who’s also the trustee, to have a conflict of interest. Your guardian, in most all cases, will receive social security for your child or children and that money will be used for them to take care of your children. The money you leave should take care of any extras that you designate, such as private schools, college, extracurricular activities and anything else you choose for that purpose.
4. How do I set up things such as selling my property and all of the assets in the house and then making sure that also goes to my child?
Kimberly: The provisions in your will or trust will provide that your property will be sold and the proceeds will be placed in a trust to take care of your children. A proper estate plan will take into consideration income and estate tax consequences so as to maximize your estate for your children.
5. If something happened to me, I’d prefer that my daughter stay with my mom, but she’s getting older and I worry that she wouldn’t be able to raise my child until she’s 18. Is there any way I can select a backup couple? Can I establish criteria that my mom must be able to manage? Is there a way I can set up co-guardianship or part-time guardianship to give my mother the help she would need to act as primary guardian?
Kimberly: Each court has its own policies regarding guardianships. Most will allow co-guardians to take care of children. You can delegate two people as co-guardians, but you will have to give one of them the discretion to dictate when the child must live with someone other than your mom.
6. I know the guardians I have designated would love my child and take good care of her. However, they are not speaking to my aunt, whom my daughter loves. Is there any way I can insist that they allow my child to maintain a relationship with her and her children? I don’t trust them to make the effort on their own.
Kimberly: You will only have so much control over what your guardians do after you are gone. You can leave instructions regarding your wishes, but they are not controlling. I would speak to the guardians and make sure that your wishes for your child will be their main concern rather than their personal feelings. If they cannot do this for you, then they may not be the best choice as guardians.
7. When you say documented instructions, what do I need to do to make sure that they are legal and binding? Do I have to get them notarized? File them somewhere?
Kimberly: You need to make sure that your instructions are executed correctly, first and foremost. Some states require that the documents be notarized and some even require witnesses. It is important to make sure that you know the correct way for your state.
8. Where is the best place to keep a will or other documentation? Can I leave it on my computer? Safe deposit box? With friends? Who should get copies?
Kimberly: The best place to keep a will is somewhere safe. You can’t leave it on the computer as it must be signed in front of a notary and witnessed. You can leave it in a safe deposit box but your executor needs to be a signatory on the box (otherwise, the document will not be accessible if something happens to you). I would not recommend leaving it with friends and I would not give copies to anyone who doesn’t need to see the contents of your will.
9. I have tried to discuss my concerns with my family (especially my parents). They tell me I am being morbid and don’t want to talk about it. What are your suggestions for overcoming this? I really worry that this is still up in the air and you never know what could happen.
Kimberly: If your concerns are about your parents planning, then you need to have “the talk.” What would they want if the unthinkable happens? What should you do if the unthinkable happens? How would they want you to handle the unthinkable? It is not morbid to have the talk. It is the best conversation you can have with your parents. It is so important to know what they would want and it is very important for them to know what you would want if something happened to you. Good parents plan for their children.
10. How can I ensure that my children are raised in the faith we have chosen or that they are taught our values or about our heritage? Is that something I can put in a will?
Kimberly: The best way to have your children raised in the faith you have chosen is to have guardians who are in the same faith. You can’t put what faith the guardians will choose for your child in a will. While you can request that your guardians raise your children in your faith, please know that if your guardians are of a different faith, it will be a difficult task for them to follow.
For more information check out:
[In Atlanta, call me, Steve Worrall, at 770-425-6060 or visit my website]
The following series of posts contain articles posted at Kaboose.com, featuring an interview with my colleague Kimberly Hegwood. If you have any questions or want to speak with me about these issues, please call me at 770-425-6060.
The person that you designated in your will can no
longer care for your children, however you have a younger brother, whom
you love to death, but you don't believe he’s mature enough to raise a
child (or has the financial means to do so). He thinks he’d make a
great dad and you know he’d be the first to offer. What do you do to
protect your children as well as avoid hurt feelings?
Kimberly:
You can avoid this by updating your will regularly and keeping an open
channel of communication with the potential guardian. If you do not
want your brother as a guardian then you need to put that in writing.
The court will not allow you to set up hurdles that a guardian must
meet after you die.
As for hurt feelings, remember you should always
put your children’s best interest above all others. But it will be
important for your brother to continue his role as an uncle and stay
involved with your children so discuss this with a potential guardian.
Try writing him a letter that he will receive at your death, explaining
your thoughts and how you would love him to be there for your kids as
an uncle.
The following series of posts contain articles posted at Kaboose.com, featuring an interview with my colleague and fellow Personal Family Lawyer, Kimberly Hegwood. If you have any questions or want to speak with me about these issues, please call me at 770-425-6060.
Your family is on vacation in another country and in a
terrible car accident. Perhaps it’s even a foreign-speaking country.
You and your husband/partner are deceased or incapacitated. Your
children are fine. You don’t have anything with you other than your
passports and wallets.
What happens to your children in the next 24 - 48 hours?
Kimberly:
Every country’s laws are different regarding death and accidents for
foreign travelers. Local laws take precedence. The State Department
would be the best source of information for your family and can help
advise them of how to proceed. There are some things you can do to
prepare.
What can you do to avoid this or better prepare?
Kimberly:
First of all, anytime you travel in a foreign country with your
children, you should contact the State Department in that country to
let them know your itinerary. Before leaving, make sure your assigned
temporary guardian knows where you are going, has a passport, and can
be contacted to travel if needed. Be sure that they also have a copy of
your temporary guardianship paperwork. It might not hurt either to ask
the State Department if they’d like a copy of that along with your
itinerary as well.
Each parent should carry emergency contact numbers on them, as well as a copy of the temporary guardianship paperwork.
The following series of posts contain articles posted at Kaboose.com, featuring an interview with my colleague and fellow Personal Family Lawyer, Kimberly Hegwood. If you have any questions or want to speak with me about these issues, please call me at 770-425-6060.
Talking about legal planning for your family is never something up
there on your list of fun things to do. However, finding yourself
without a plan can be scary so there’s no time like the present to sit
down and just do it.
It doesn’t matter how much money you have, if you
have young children, you need to think about this. In the long run,
there’s no better peace of mind than knowing you have hammered out the
details of how you want your kids to be taken care of, long term as
well as within the first twenty four hours of something happening.
We’ve asked Kimberly Hegwood of Hegwood & Associates, P.C., a
personal family lawyer, mom of two, and a licensed estate planning
attorney in the state of Texas, to look at some
not-so-uncommon-scenarios and tell us how parents can best to prepare
for them:
Scenario #1, You Don’t Make it Home
You
and your husband are in, God-forbid, a car accident driving home from
work together. Both of you is either seriously incapacitated or worse.
Your child is at preschool or home with a babysitter. You do not have
wills in place. What happens to the children in the next 24 hours? What
happens in the month following? What happens long-term?
Kimberly:
The problem with traditional estate planning is that there is no
provision for temporary guardians for your children, which results in a
planning gap. Your children may be at home with a sitter or at day care
when something happens. Since they haven’t heard from you, your care
giver may end up having to call the police. Once the police are called,
if the babysitter or daycare provider cannot show documentation that
they have legal authority to care for your children, the police have no
alternative but to call Child Protective Services (CPS). If that
happens your family may have to spend thousands of dollars to gain
custody of your children.
Since you don’t have wills, family members may end
up battling over custody rights, and a judge who does not know you or
your children, will determine who will raise your children for you.
What can you do to avoid this scenario?
Kimberly:
Not only do you need to have a will or a trust, a medical power of
attorney, statutory durable power of attorney and directive to
physicians, but you need temporary guardianship papers for your
children.
In order to make sure your ducks are in a row, you
should find an attorney that suits your needs. An estate planning
attorney usually knows how to protect your family from this happening.
A Personal Family Lawyer (PFL) is just such a lawyer. A good PFL can
help plan for the gap that others may miss. It’s important to put in
writing not only whom you want to raise to raise your children, but
those that you don’t want to be considered as well. This way a judge
will know that you have considered all possibilities. Make sure you
talk to the people you’d like to have raise your children as well and
clearly state your preferences for them in writing.
The author of the following article, Alexis Martin Neely, was featured in an interview on Good Morning America this morning. She had some important information that all parents need to hear:
Becoming a dad is the ultimate step into adulthood. It simply doesn’t
get more real than that, does it? That little face looking up at you
makes you realize that life isn’t just about you anymore. Suddenly,
you are responsible for the well-being and care of a little person who
is totally reliant on you. And in some ways, this new “mini-you” that
has come into the world makes you feel immortal.
On the flip side though is the lurking
thought “what will happen to mini-me if something happens?” If you are
like most people (69%), you push away the thought because it’s too
scary to contemplate your child being raised by anyone besides you.
But, here’s the thing … if you aren’t
willing to take the time and invest the energy in setting things up for
your little one (and her mom) the right way, you will leave your family
with a world of hurt if something happens to you.
The good news is that setting things up
the right way and doing the right thing by your family doesn’t have to
be as painful as you think it will be. If you are in the know about
what you need and how to get it taken care of, getting your personal
affairs in order can even be downright enlightening.
Let’s start with the bare minimum of what
every dad needs to have in place to make life as easy for his kids and
their mom if anything happens.
Document Set #1: Kids Protection Plan
Regardless of the size of your bank account, if you’ve got a child at
home who depends on you, you need to have a comprehensive Kids
Protection Plan® (KPP) in place to ensure her well-being and care in
case you can’t be there.
A KPP begins with naming legal guardians
to raise your children if anything happens to you and their mother.
But, that’s just the beginning. A comprehensive KPP will also name
local friends or family as guardians for the immediate/short-term care
of your children so that the authorities never have to take your
children out of your home and into the care of strangers. With a KPP
in place, you’ll carry an ID card in your wallet listing the names and
addresses of your immediate/short-term guardians as well as provide
written instructions to all of the people who care for your children,
such as babysitters and schools. Finally, a KPP will confidentially
exclude anyone you know you would never want to serve as guardian of
your children to ensure there are no court-room battles over your
child’s care and will also provide detailed instructions about things
like health care, education, discipline and your values, so your
children are raised the way you want, no matter what.
Document Set #2: Financial Durable Power of Attorney
A financial durable power of attorney is
something every adult needs, even if you don’t have little kids at
home. This document is what will let your family access your bank
accounts, pay your bills, and make financial and legal decisions for
you if you are hospitalized or otherwise incapacitated.
This story should bring home the importance of having a durable power of attorney in place:
My law firm was contacted by a young woman
after her father was hurt at his janitorial job, hospitalized and
unable to communicate. This man thought he didn’t need estate planning
because his income was very low and he had less than $10,000 in the
bank.
Unfortunately though, his failure to plan
left his family in a lurch. They needed the little bit of money he had
in the bank, but couldn’t access it without going to Court because the
account was in his name and he didn’t have a durable power of attorney
naming anyone to act for him legally.
The cost of going to Court was going to cost their family more than the money that was in the bank!
Don’t leave your family in this kind of a painful situation unable to
access the limited resources you have because you didn’t do what you
need to do. Be sure you have a financial durable power of attorney in
place and make sure it’s comprehensive and will work when your family
needs it.
Document Set #3: Health Care Directive (Living Will)
A Health Care Directive (also known as a
Living Will or Health Care Power of Attorney) is another document set
that every adult needs, even if you don’t have little ones at home
counting on you.
These set of documents do two important things:
Appoint the person you want to make health care decisions for you, if you cannot make them for yourself; and
Tell your appointed decision-maker how you want those decisions to be made.
Each state has its own rules for how these
documents should be prepared. In some cases, your instructions can be
all in one document and in others they need to be two separate
documents. The most important thing is that you get something down in
writing.
And, once again, make sure you’ve got
something that will really work when your family needs it. I recommend
giving broad discretion to someone you trust to make decisions about
all of your health care decisions, including not only life-saving
medical care, such as respiration, but continued nutrition and
hydration in case you are incapacitated. If you recall the Terry
Schiavo case from several years ago, in which her husband and her
parents fought over whether she should be kept alive or not and the
case was brought all the way to the Florida Supreme Court, the issue
was not whether to continue to keep her lungs pumping, but whether to
continue to provide nutrition and hydration – be sure your medical
directive addresses these issues.
Document Set #4: Will:
When it comes to estate planning, most
people think of having a Will. Unfortunately, having a Will often
provides a false sense of security to people who think “I have a Will,
therefore, I’ve taken care of everything.” That’s a myth.
In fact, your Will is the least important of the 5 legal documents every dad must know about.
A Will sets forth what you want to happen
to your assets at the time of your death. But, here’s the thing, where
there’s a Will and your assets are owned in your name, the Will merely
acts as instructions to the Court as to what to do with your assets.
That means your family is stuck dealing with the Court after you are gone. Nobody wants that, trust me.
The Court process for handling your assets
after your death is called probate. It’s typically expensive,
time-consuming, and always totally public, which means anyone in town
can find out how much you’ve left behind, who it went to and when they
get it. That puts your loved ones on the radar of every con artist in
the neighborhood.
A Will alone is really only appropriate for dad’s who have no (or very
limited) assets titled in their name. If you have assets, such as a
home, bank accounts, life insurance, and retirement accounts, you need
to have a Living Trust to keep everything out of court, totally private
and make it super easy for your loved ones.
You may have heard that if you only have life insurance and retirement
accounts that you could simply name beneficiaries on those assets and
avoid probate. That’s true, but not going to work if you have minor
children because they are too young to be the beneficiaries of your
assets and would end up in Court with a guardian appointed to handle
them. Not what you want.
Document Set #5: Trust
If you have financial assets or real estate, you want to have a Living
Trust. A Living Trust is the single best way to make things as easy as
possible for the people you love, bar none.
But, and it’s a big BUT, most people who have a Living Trust in place have one that won’t work when their family needs it.
It’s the same for each of these documents I’ve talked about; they are
only going to work the way they were designed to work if the law stays
the same and your life stays the same.
As your life changes, the documents need to change.
As the law changes, the documents need to change.
And, for your Living Trust, it won’t work
unless all of your assets are titled in the name of it, not just once,
but every time you acquire an asset in the future.
I’ve met with loads of people who thought
they had everything taken care of because they had prepared these 5
documents or had them prepared by a lawyer, but because they had not
been kept up to date or their assets were not owned properly, the
documents didn’t work!
In fact, that happened in my own family
when my father in law died. He had spent thousands of dollars to work
with a lawyer who put in place a set of documents for him and then
didn’t keep them up to date and didn’t make sure his assets were owned
properly on an ongoing basis. What that meant is at the end of his
life, we were stuck dealing with the one thing he thought he was
protecting us against – the probate court and a fight with his ex-wife.
Even Michael Jackson, who no doubt spent hundreds of thousands of
dollars with his lawyers, had a trust-based estate plan that he was
probably told would keep his family out of court. As we now know, it
must have failed because his family has been dragged into court already
multiple times since his death with everything open to the public.
So, yes, these 5 documents are absolutely
vital because they will make life as easy as possible for your family,
keep your loved ones out of court and get them easy access to your
assets in the midst of a crisis, but only if they are kept up to date and your assets are owned properly.
Most people do not have the time,
knowledge and discipline to do this for themselves the right way. If
you do, great. But, who is going to guide your family to make the
right decisions and carry things out the right way after you are gone?
Because when all is said and done, that’s really what this about, isn’t?
There’s nothing more important to you than your family. They are why you do everything you do, right? So, for them, find a lawyer who will guide you right during your lifetime and be there for your loved ones when you can’t be.
It’s far easier for you to take care of things now, while you are
living and able than it will be for them to take care of things after
you are gone. Legal planning is not about the money; it’s about making
life as easy as possible for the people you love … no matter what.
Special Update!
In honor of the Dad-o-Matic
article and her appearance on Good Morning America, Alexis has
convinced her publisher to give her vital book on legal planning for
parents (Wear Clean Underwear, Morgan James Publishing 2008) away on
Kindle for just .99. Get your copy today right here.
To complicate things further, the father of these children is not
(and has never been) in the picture to claim responsibility. So fearing
the kids would end up separated in the state welfare system, a neighbor
(who also has six children of her own), stepped up to the plate. And
thankfully the Los Angeles community has stepped up to the plate by
donating diapers, clothing, food, etc. for the now mother of 10.
But in most cases, stories like this one don’t have such a happy
ending. The sad reality is that children are placed in situations their
parents would’ve never have dreamed possible because they didn’t take
the time to plan ahead in the case of their unexpected death or
incapacity.
Let this be a wakeup call for you.
There are three simple things that could have been done differently
to ensure these kids were taken care of upon their mother’s
passing. And if you have little ones at home counting on you, I urge
you take these steps now to ensure a legacy-and not regrets-are what
you leave behind:
1. Get a Term Life Insurance Policy- For a small
amount of money each month, this mother of three with a fourth on the
way could have been paying for a life insurance policy so that her
children were provided for financially should something happen to her
(especially knowing that their father was not in the picture and would
not contribute to their care financially). Because she did not have
life insurance in place, her children are now forced to rely on
handouts and charitable donations from neighbors until they are old
enough to support themselves.
2. Name Short-Term and Long-Term Guardians- While
this story “seems” to have a happy ending with the neighbor stepping up
to raise the four children and keep them all together, will she really
be able to manage raising ten children? Maybe there was another friend
or a family member who would have raised these kids EXACTLY as their
mom would have wanted, but we’ll never know because she didn’t document
her choices for her kids’ care.
3. Create a Legacy of Non-Tangible Assets- This
mother unexpectedly died during childbirth. Because of this, her
newborn baby will never hear the sound of her voice or know firsthand
what her mother’s values were or how she would have guided her about
things like spirit, money, discipline, education, sex, or health
care. As parents, even if you don’t have any money to leave behind, you
can leave your children a gift of your values - who you are and what’s
important to you. You can do that for free by writing letters or
recording a CD for your children. If you work with a Personal Family Lawyer®, this is just part of the legal planning process and becomes a gift that is far greater than all the money in the world.
Ideally, the best way to ensure the well-being and care of your family is to meet with a Personal Family Lawyer®-but
if that’s not feasible for you at the moment because of time or
financial constraints or because there isn’t one in your neighborhood,
I’ve given you steps you can take in the interim. My number one
suggestion is to grab a Kids Protection Planning Kit and a digital recorder or a video recorder. The Kids Protection Planning Kit
will walk you through the legal documentation process and even has
forms you can complete to leave instructions to your guardian. But,
even better than writing them out, speak them. Leave your kids an audio
or video message from you - that’s truly priceless.
Regardless of how you chose to go about it, take the time to get
your affairs in order while there’s still time-ESPECIALLY if you have
young kids depending on you at home. It’s the only way to leave behind
a real legacy-instead of regrets-at the end of your life.
My colleague and fellow estate planning attorney and blogger, Jennifer N. Sawday, of the California Estate Planning Blog and the law firm of Tredway, Lumsdaine & Doyle, LLP has written a post on the recent deaths of Michael Jackson, Farrah Fawcett and Ed McMahon. She has gotten some nice feedback on it in the blogging circles (way to go, Jenni!) and I have reposted it below:
Three
very notable celebrities have died. Ed McMahon, Farrah Fawcett and now
Michael Jackson. Each had families. Each had loved ones. Each had
assets. And each had potential contestants to their estate. Did each
have an estate plan in place that was updated and reflected their
wishes?
Time will soon find out. The media will report if their
estate administration turns out to be a mess like Anna Nicole Smith's
was.
Ed was survived by his wife so his estate is likely to be
less burdensome whether he had an estate plan in place or not. A
surviving spouse generally has an easier time on formal estate
administration than children or other loved ones.
If you are
not married like Farrah or Michael were -- having an estate plan in
place is very important especially if you want to provide for your
partner or other loved one despite not being married. Both Farrah and
Michael had children that should be provided for. And Michael is
survived by three young children. The mother of two of the children
relinquished her parental rights so their guardianship and care may
very well wind up being a contested matter.
You need to outline
your wishes for disposition of your assets, nominate a successor
trustee or executor to handle your affairs and otherwise make your
wishes known. Where there are minor children in place, it is very
important to nominate guardians and have a trust in place in the event
of your passing.
It simply does not matter who you are. An
estate plan carefully drafted and funded in conjunction with your
professional advisors, such as your attorney, accountant and financial
advisors, is important. Important for everyone including celebrities.
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This blog is written and published by Stephen M. Worrall for educational purposes only, i.e. to give information and a general understanding of Georgia family law, not to provide specific legal advice. The information provided by this blog should not be used as a substitute for legal advice from a licensed attorney in your state. Steve Worrall is licensed to practice law in the state of Georgia only.
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Some material contained in this blog is general in nature and may not reflect the current laws of the State of Georgia. The author of this blog does not necessarily support the views expressed in all articles contained herein and cannot guarantee their accuracy.
The inclusion of material from identified sources is for educational purposes only and is not intended to infringe on the copyrights of the identified sources.
Georgia Cities and Counties in Which We Practice
We do take and have handled cases in counties throughout the State of Georgia, but these are the ones in which we handle the majority of our cases.
Bartow County, GA Includes the cities of Cartersville, Emerson, Euharlee, Kingston, and White
Cherokee County, GA Includes the cities of Ball Ground, Canton, Holly Springs, Waleska, and Woodstock
Clayton County Includes the cities of Forest Park, Jonesboro, Lake City, Lovejoy, Morrow and Riverdale.
Cobb County, GA Includes the cities of Acworth, Austell, Kennesaw, Marietta, Powder Springs and Smyrna and the communities of Mableton, Vinings, Fair Oaks, Cumberland, Town Center, East Cobb, West Cobb, North Cobb, and South Cobb
Coweta County Includes the cities of Grantville, Haralson, Moreland, Newnan, Senoia, Sharpsburg and Turin.
DeKalb County, GA Includes the cities of Avondale Estates, Chamblee, Clarkston, Decatur, Doraville, Lithonia, Pine Lake and Stone Mountain.
Douglas County, GA Includes the city of Douglasville and the community of Lithia Springs.
Fayette County Includes the cities of Brooks, Fayetteville, Peachtree City, Tyrone and Woolsey.
Fulton County , GA Includes the cities of Alpharetta, Atlanta, College Park, East Point, Fairburn, Hapeville, Johns Creek, Milton, Mountain Park, Palmetto, Roswell and Union City.
Gwinnett County, GA Includes the cities of Berkeley Lake, Buford, Dacula, Duluth, Grayson, Lawrenceville, Lilburn, Loganville, Norcross, Snellville, Sugar Hill and Suwanee.
Henry County Includes the cities of Hampton, Locust Grove, McDonough and Stockbridge.
FREE SPECIAL REPORT: 5 Ridiculous Myths About Estate Planning:
What They Are, Why We Believe Them and How They Could Seriously Hurt the People and Things You Love
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When it comes to estate planning, there are 5 ridiculous myths that could cause your plan to crumble and fall apart when your family needs it the most.
Whether you already have an estate plan or you have ZERO documents in place, this report will help you identify common myths and mistakes so that you can FIX any problems, make the right decisions and properly safeguard the people and things you love.
BEFORE YOU GO ONE STEP FURTHER WITH YOUR PLANNING….
Download this free special report from attorney Steve Worrall and discover:
• The most common reason why estate plans FAIL when families need them the most (…this can happen no matter how much you paid or how great your attorney was!)
• Why estate planning is not just for the rich or elderly, and the bare minimum documentation every adult over 18 needs in place
• Why your kids may still end up in the care of social services, even with guardians named, if something happens to you
• One common oversight that may force your estate into probate, even though you have a rock-solid trust in place
• Why your family may not be able to honor your most private health care wishes if something happens to you
• …and more!
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ABA Section of Family Law: Tech Corner Family Law practitioner and ABA Family Law Section member Stephen M. Worrall refers to Microsoft Office OneNote as The Ideal Note-Taking Tool for Today's Lawyer in his TabletPCLawyer blog.
Alabama Family Law Blog: Checklist of Divorce Issues I've just discovered Stephen Worrall's Georgia Family Law Blog. Its a very good blog with a lot of great content, and its not all specific to the state of Georgia, so check it out.
California Divorce Blawg: Georgia Family Law Blog Stephen M. Worrall and Melissa A Mullin, are in charge at the Law Firm of Mullin & Worrall in Marietta, Georgia. In addition Worrall produces the Georgia Family Law Blog, which is a great resource for those with Georgia divorce on ther minds. For those of your who have seen me in court, visited my office, of sat in on one of my speaking presentations, you are aware of the fact that I am a big proponent of tablet pc's, and I use mind all the time. If Stephen Worrall wasn't busy enough and maintaining his Georgia blog, he also produces the Tablet PC Lawyer Blog, which I frequently visit. Take a look at both of his blogs when you can.
CKA Mediation & Arbitration Blog: Excellent Resource on Georgia Domestic and Family Law (including mediation) I recently found an interesting, informative and frequently updated blog about Georgia family law and divorce law, the Georgia Family Law Blog. Run by Stephen M. Worrall, a Marietta based domestic attorney, it contains tons of great information on Georgia domestic and family law, including mediation.
I plan to visit the site often as I hope to expand my practice into domestic mediation in the next few months.
Divorce Law Journal: Blawg Review #101 Gaining ground in my corner of the blawgosphere are divorce and family law bloggers . . . Stephen Worrall of Georgia Family Law Blog with Helping Georgia’s juvenile code grow up.
Divorce Law Journal: More on Getting a Get Thanks to Stephen Worrell at the Georgia Family Law Blog for the post Jewish women look to courts to obtain traditional divorce decree which led us to the article.
Florida Divorce & Family Law Blog: Observations from Seasoned Family Law Attorney I recently found this article on the Georgia Family Law Blog. It gives some helpful advice to divorcing couples on how to conduct yourself during a divorce. Its helpful to get advice and thoughts from a seasoned family law attorney who has been "in the trenches" for many years.
Florida Estate Planning Lawyer Blog - How to Choose a Guardian for your children The Georgia Wills, Trust, and Estate Planning Blog has an article on choosing the right guardian for your children where the break down the process into three steps. This three-step approach should make the process easier to accomplish without damaging the marriage.
Indiana Family Law Blog: Helping children cope with your divorce The Georgia Family Law Blog has another excellent article on helping kids deal with the challenges they face when the parents divorce. Any family law attorney worth his or her weight in salt should refer clients to this article.
Indiana Family Law Blog: How to stay happily married By way of Georgia’s most active family law blogger, we have a link to a free podcast (aka audio file to listen to on your computer or mp3 player) featuring ten marriage counselors each offering a tip on how to keep a marriage happy.
Indiana Family Law Blog: More good planning ideas The Georgia Family Law Blog has another dose of good advice for people contemplating divorce. What I particularly like about this post is that it’s not adversarial. It’s practical and looks toward the future.
Indiana Family Law Blog: The beginnings of an idea, perhaps a proposal Fellow family law blogger Steve Worrall notes that in his home county [, Cobb County, Georgia, in Marietta and metropolitan Atlanta], there is a program for engaged couples and newlyweds that addresses topics like communication, anger management, financial planning, and so on.
Inter Alia: Blawg of the Day Steve Worrall is a lawyer with the firm of Mullin and Worrall in Marietta, Georgia. His Georgia Family Law Blog provides "news and thoughts on family law issues in Georgia: divorce, alimony, child support, child custody, visitation, property division, adoption and more."
Kentucky Family Law Blog: Choosing a Guardian for Your Children The following article came to my attention through the Georgia Wills and Probate Law Blog. While not related to child custody law, I feel that it provides important considerations for those with familes that are changing due to divorce.
NC Divorce Talk Radio: YouTube and Billboards The panel also visits the issue of domestic violence and takes a look at a post from the Georgia Family Law Blog that examines the non-physical aspects of abuse in a relationship.
Ohio Estate Planning and Elder Law: Couples Face Pitfalls When Estate Planning In A Second Marriage Attorney Stephen M. Worrall writes the following in his Georgia Wills, Trusts and Estate Planning Blog. This centers upon an issue that is constantly overlooked, creating drastic and unfortunate impact upon the estates of many people! Don't overlook the importance of planning in second marriage situations.
P.I.S.S.D.: Link of the Day - Georgia Family Law Blog Marietta, Georgia attorney Stephen M. Worrall writes the Georgia Family Law blog in addition to maintaining a Web site on Georgia Family Law....
Attorney Worrall also publishes the Georgia Wills and Probate blog.... And now, late breaking news: Steve has just started a new blog about tablet computers.
Sam Hasler's Indiana Divorce & Family Law Blog: My Roundup of Law Blogs Part 3 Georgia Prenuptial and Postnuptial Agreements Blog: "News and Thoughts on Prenuptial Agreements, Postnuptial Agreements and Reconciliation Agreements in Georgia." From Stephen Worrall who also publishes Georgia Family Law Blog. Fairly new, well-written. Combine this with #14 if you leave here wanting more information on pre-nuptial agreements.
UPDATES IN MICHIGAN FAMILY LAW: Electronic evidence used more frequently Steve Worrall, author of the outstanding Georgia Family Law Blog, has written many posts recently about the increasing frequency with which electronic evidence is being sought and used in court proceedings. A recent blog article entitled Law evolving as divorces drag in electronic evidence, is well worth the time to read, whether you're a family law subscriber to this Blog or a layperson involved in a pending divorce.
VA Family Law Blog: Abuse Warning Signs Take a moment and look at this important post from the Georgia Family Law Blog because it wisely points out that before abuse becomes domestic violence, there are warning signs. These signs may be happening in the life of someone you love or work with. The blog post was spawned by one of the too-numerous instances of death-by-spouse which happen in the U.S. each year.
Regardless of the size of your bank account, if you’ve got a child at
home who depends on you, you need to have a comprehensive Kids
Protection Plan® (KPP) in place to ensure her well-being and care in
case you can’t be there.
