Georgia Wills, Trusts, Probate and Estate Planning Blog

Wills in Georgia

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Requirements Basic Requirements for a Georgia Last Will and Testament: Age: The testator must be at least 14 years old. Capacity: The testator must be of sound (capable of reasoning and making decisions) mind and memory. Signature: A Georgia last will and testament must be in writing and must be signed by the testator or by some other individual in the testator's presence and at the testator's express direction. Witnesses: Two witnesses or more (these witnesses should not receive property under the will) must sign a Georgia last will and testament in the testator's presence. Writing: A Georgia last will and testament must be in writing to be valid. Beneficiaries: A will may make a disposition of property to any person that isnot inconsistent with the laws or contrary to the policy of the state of Georgia. Purpose Distribution of Property: A will is a legal document created by you to determine how your property, known as your estate, is distributed after your death. Your estate consists of assets and property including bank accounts, homes, land, furniture, automobiles, and securities (stocks and bonds). In general, Georgia laws allow you to dispose of your property as you wish. Other Purposes of Wills: [A Georgia will] may be used to designate a guardian for any minor children. [A Georgia will] may also be used to name an executor (also called a personal representative or administrator) to handle a testator's property and affairs from the time of death until an estate is settled. Notable exceptions to the ability to distribute property: Property owned in joint tenancy with a right of survivorship automatically passes onto the surviving owner. Property owned by the testator in a life estate may not be willed away upon the testator's death. A will cannot divert the proceeds of a life insurance policy to another beneficiary. Providing for Pets Georgia law currently does not have specific statutes pertaining to providing care for pets. However, the testator may specify a beneficiary as the new owner of a pet. Changing and Revoking Changing a Will A Georgia will and testament may be changed whenever the testator desires. A Georgia will and testament can be changed through a codicil, which is a document stating additions or changes to the original will. Codicils must be executed in accordance with Georgia laws. Revoking a Will A testator may expressly or impliedly revoke a Georgia will and testament. An express revocation occurs when the testator by writing or action expressly annuls a will. An express revocation occurs with any destruction or obliteration of the will done by the testator with intent to revoke or by another at the testator's direction. An express revocation takes effect instantly. An implied revocation results from the execution of a subsequent inconsistent (different terms in the will compared to the original will) will that does not by its terms expressly revoke the previous will. An implied revocation takes effect only when the subsequent inconsistent will becomes effective. If the subsequent, inconsistent will fails to become effective from any cause, the implied revocation is not completed. Probate and Estate Taxes Probate After the testator has died, probate procedures prove the validity of the Georgia last will, pay off debts and taxes of the estate, and distribute property as designated in the Georgia last will. Estate Taxes According to the Georgia Probate website, Georgia's estate tax on the estate covered by a Georgia last will is equal to the death tax credit under Federal estate tax system. Georgia does not have its own estate tax form, and the Federal estate tax form should be used if estate taxes are due within 9 months after the testator's death. Intestacy It is extremely important to make a Georgia will if you want to control the distribution of your estate. If you die without a valid will, you are said to have died "intestate" and your property will be distributed according to strict Georgia laws. For example, a spouse will receive the entire estate when no children or parents exist at the time of the decedent's death. When only children survive after the death, then the children share the property in equal amounts. If you make a Georgia will, your valid will prevents the laws of intestacy from deciding the distribution of your estate. SOURCE: LegalZoom

Georgia Wills: A Fact Sheet

What is a Will?

A will is a document that you use to say what you want to have happen to your property after you die. A person making a will is called a "testator."

What happens if I die without a will?

If you die without a will, your property will be distributed according to Georgia's intestate law. "Intestate" is when a person dies without a will. If you die without a will, then your property will be distributed to your spouse and your children. They will inherit equally, although your spouse will inherit at least 1/3 of your estate, no matter how many children you have.. If one of your children dies before you do, then his or her children will inherit his or her share equally. If you do not have a spouse or children, your parents will inherit and if your parents die before you do, then your brothers and sisters will inherit equally. If one of them dies before you do, then his or her children will inherit his or her share equally.

What property can I give away in my will?

You can use your will to say how you want any property that you own to be divided. This includes real property or land and personal property such as furniture, clothing, dishes, pictures and jewelry.

Who takes care of things after I die?

When you make a will, you will also select a person to carry out your wishes for you after you die. This person is called the “Executor.” If you die without a will, then someone will need to petition the court to administer your estate. This person is called the “Administrator.” An Executor and an Administrator are also sometimes called “Personal Representatives.” They take care of matters dealing with your estate under the guidance and supervision of the probate court.

Will going to Probate Court cost a lot of money?

Generally it will not cost a lot of money to go through the probate process. The probate court tries to make it easy for your family or friends to handle your affairs. They can provide you with the forms and other information. It is a good idea to speak with an attorney about these matters however.

SOURCE: Atlanta Legal Aid Society

Guardianship of Minors

The judge of the probate court of the county of the domicile of a minor having no guardian has the power to appoint a temporary or permanent guardian of person and/or conservator of property, or both, of such minor.

            If the minor is over 14 years of age before the guardian is appointed, the judge of the probate court is required to follow any selection made by the minor, provided the selection is a judicious one.   The selection once made cannot be changed by the minor, except by showing cause for the removal of the first guardian.

            The probate court has no jurisdiction in cases concerning loss of custody by a parent or guardian due to cruel treatment, abandonment, or immoral conditions.

            There is no authority vested in the judge of the probate court to displace a parent as guardian of the person of a minor.  Thus, the judge of the probate court cannot appoint a permanent guardian of the person of a minor with living parents, unless the parents’ rights have been terminated.

            Guardians of minors fall into the following general classification:

1.     Natural Guardians

Natural Guardians:     Unless otherwise provided by law, if both parents are alive, either is the natural guardian of the minor child.  If the parents are legally separated or divorced, the custodial parent is the natural guardian. 

2.     Testamentary Guardians with Letters

Testamentary Guardians:   A testamentary guardian is a guardian of a minor appointed by the will of the minor’s parents.  Every parent may, by will, appoint a conservator for the property left to his minor children under that will.  Every parent may also, if he is the last parent to survive, appoint by will a conservator over the minor’s property and a guardian over the minor’s person. 

3.     Testamentary Conservator with Letters

4.     Guardians of person

Guardians of Person:  A guardian of the person is defined to be one who has been lawfully invested with the care of the minor whose natural guardian is dead or has relinquished his or her parental rights.  The appointed guardian is considered as standing in the place of the natural guardian for the sole purpose of the care and maintenance of the minor.

5.     Conservators of property

Conservators of Property:  In the event a minor possesses property and there is no natural guardianship designation made, a conservator of property must be appointed to take charge of and secure any such property for the minor and to hold such security until minor reaches the age of majority. 

6.     Guardians of both person and Conservator of property

Guardians of person and conservator of property:  Are a combination of the above listed classifications.

7.     Guardians ad litem

Guardians ad litem:  Whenever a minor has an interest in any litigation pending in any court in this state and has no guardian, or his/her interest is adverse to that of the guardian, such court may appoint a guardian ad litem who is responsible to the minor for his conduct in connection with the litigation in the same manner as if he were a legally qualified guardian.  The guardian ad litem is liable to the ward for any damages which may result from any culpable omission or negligence on his part.  The appointment of a guardian ad litem is a right inherent in every court, not the probate court alone.

8.     Standby guardians

Standby Guardianships:   A parent or legal guardian of a minor child may sign a document designating another person to serve as “standby guardian” for the minor in the event the parent or guardian is determined to be unable to care for the minor due to the parent’s or guardian’s physical or mental condition or health including a condition created by medical treatment.

9.     Temporary guardians of minors

Temporary Guardians:  An appointment of a temporary guardian of the person of the minor may be ordered when need is alleged by the person having actual physical custody of the said minor.  However, no temporary guardian may be appointed unless proper notice is given to the natural parents/guardians or if any objection is filed by a natural parent/guardian.

10.Temporary substitute Guardian

Temporary substitute Guardian:  Upon its own motion or on the petition of any interested party, including the ward, the court may appoint a temporary substitute guardian for a ward if it appears to the court that the best interest of the ward requires immediate action.  The temporary substitute guardian shall be appointed for a specified period not to exceed 120 days.

11.  Temporary substitute Conservator 

Temporary substitute conservator:  Upon its own motion or upon the petition of any interest party, including the ward, the court may appoint a temporary substitute conservator for a ward if it appears to the court that the best interest of the ward requires immediate action.

SOURCE: Glynn County Probate Court

Georgia Advance Directive for Health Care

The General Assembly passed a new Advance Directive for Health Care Act, which was signed by Gov. Sonny Perdue. House Bill 24 is designed to provide for an advance directive for health care, which combines provisions of a living will and a durable power of attorney for health care.

This is the statutory form for the new Advance Directive for Health Care in Georgia:

By:			Date of Birth:
	(Print Name)			(Month/Day/Year)

This advance directive for health care has four parts:

PART ONE—Health Care Agent.  This part allows you to choose someone to make health care decisions for you when you cannot (or do not want to) make health care decisions for yourself. The person you choose is called a health care agent. You may also have your health care agent make decisions for you after your death with respect to an autopsy, organ donation, body donation, and final disposition of your body. You should talk to your health care agent about this important role.

PART TWO—Treatment Preferences. This part allows you to state your treatment preferences if you have a terminal condition or if you are in a state of permanent unconsciousness. PART TWO will become effective only if you are unable to communicate your treatment preferences. Reasonable and appropriate efforts will be made to communicate with you about your treatment preferences before PART TWO becomes effective. You should talk to your family and others close to you about your treatment preferences.

PART THREE—Guardianship. This part allows you to nominate a person to be your guardian should one ever be needed.

PART FOUR—Effectiveness and Signatures. This part requires your signature and the signatures of two witnesses. You must complete PART FOUR if you have filled out any other part of this form.

You may fill out any or all of the first three parts listed above. You must fill out PART FOUR of this form in order for this form to be effective.

You should give a copy of this completed form to people who might need it, such as your health care agent, your family, and your physician. Keep a copy of this completed form at home in a place where it can easily be found if it is needed. Review this completed form periodically to make sure it still reflects your preferences. If your preferences change, complete a new advance directive for health care.

Using this form of advance directive for health care is completely optional. Other forms of advance directives for health care may be used in Georgia.

You may revoke this completed form at any time. This completed form will replace any advance directive for health care, durable power of attorney for health care, health care proxy, or living will that you have completed before completing this form.

Choosing the Executor

Who will be the person or institution responsible for administering your estate through probate? [This article] spells out what the executor does, but the most important thing is that you pick someone who is financially responsible, stable, and trustworthy.

The law requires an executor because someone must be responsible for collecting the assets of the estate, protecting the estate property, preparing an inventory of the property, paying valid claims against the estate (including taxes), representing the estate in claims against others, and, finally, distributing the estate property to the beneficiaries. These last two functions may require liquidating assets; that is, selling items like stocks, bonds, even furniture or a car to have enough cash to pay taxes, creditors or beneficiaries. The will can impose additional duties not required by law on the executor: choosing beneficiaries or distributing personal property, even investing funds.

Sounds like a lot of work, doesn't it? It can be, and some of it can be complicated. However, the executor doesn't necessarily have to shoulder the entire burden. He or she can pay a professional out of the estate assets to take care of most of these functions, especially those requiring legal or financial expertise, but that will reduce the amount that goes to the beneficiaries. Therefore, handling an estate is often a matter of balancing expertise, convenience, cost, and so on.

There's no consensus, even among lawyers, about who makes the best executor; it all depends upon your individual circumstances.

Estate Administration

Whenever a person dies, his or her estate needs to be collected, managed, and distributed. Estate administration involves gathering the assets of the estate, paying the decedent's debts, and distributing the assets that remain in the estate.

In recent years, state legislatures have attempted to reduce the complexity of estate administration. Currently, about 20 states have adopted some version of the Uniform Probate Code (UPC), which was designed to simplify the estate administration process and provide similarity among probate laws from state to state.

Which State Law Applies?

In some cases, an estate may need to be administered in more than one state. Generally, the state in which the decedent resided at the time of death will be the state where the decedent's estate is probated.  However, state law governs the transfer of real estate, so if the decedent owned real estate in another state, it may be necessary to do an ancillary proceeding to probate that one piece of property in the state where it is located.  An ancillary proceeding is a scaled-down probate proceeding, which governs only the assets located in that state.  In some instances, it may be necessary to consult two attorneys, one in the state where the decedent lived and another attorney in the state where the decedent owned real estate.

Estate Planning & Probate Dictionary

Following is an explanation of commonly used words and phrases related to estate planning and probate.

AB Trust - A trust designed to make sure the personal estate tax exemption of each spouse (currently $1.5 million) is used to the fullest extent possible, while allowing the surviving spouse to have use of the assets of the deceased spouse during the remainder of the surviving spouse's lifetime.

Administrator - A court-appointed person who manages the estate of a deceased person who has died without a will.

Attorney-in-Fact - An individual designated in a power of attorney to act as the agent of the person who executed the document.

Basic Will - A will that distributes everything to your spouse, if living, otherwise to your children when they reach the age of majority (18 years old).

Beneficiary - A person who receives funds, property, or other benefits from a will, contract, or insurance policy.

Avoiding Probate

The probate process serves the vital purpose of ensuring that an individual's estate is properly distributed to his or her creditors, heirs and beneficiaries. But, the probate process can be slow and can often tie up estate property for several months. Probate may also be costly, with certain fees being paid out of the estate and reducing the amount left for distribution. For these reasons, many people may wish to arrange their affairs so that their loved ones do not have to go through the probate process, and can receive assets from the estate more efficiently. 

There are several methods that can be used to avoid the probate process, and to distribute assets immediately at the time of the decedent's death. Among these methods are:

• Joint Ownership with Rights of Survivorship;
• Beneficiary Designation; and
• Revocable Living Trusts.

Joint Ownership with Rights of Survivorship

Property owned in joint tenancy with rights of survivorship automatically passes, without probate, to the surviving owner or owners when one owner dies.  Joint tenancy is simply a type of property ownership involving more than one owner, leaving each owner with the right to a larger share of the property should any individual owner die.  This model often works well when couples (married or not) acquire real estate, vehicles, bank accounts, securities, or other valuable property together.  To take joint title with someone usually only requires that joint ownership is stated on the paper that shows ownership (i.e., car title, a real estate deed, or other document).  But since each joint tenant has control over the property, you should be careful when committing to this type of ownership.

Types of Probate

• Supervised: The most formal and expensive method. The court plays an active role in approving each transaction. In states where it's optional, supervised administration is used for contested estates, when an interested party requests it, or when the executor's ability is questioned.
• Unsupervised or independent: A simpler, cheaper method in which the number of duties and procedures is reduced and the court's role is diminished or eliminated. It's used for estates that exceed the asset limit for small-estate administration (see below) but don't require heavy court supervision. It often requires consent of all beneficiaries, unless the will specifically requests unsupervised administration.
• Small estate: The simplest and fastest probate, it's not available in every state and where it is only for small estates, ranging from $1,000 to $100,000, depending on state law. Property is often transferred by affidavit. Small estate administration often lasts only a few weeks.

ABA Guide to Wills and Estates
Copyright 1999, 2000, 2002 American Bar Association

SOURCE: FindLaw

The Probate Basics

Introduction

The legal process of transferring of property upon a person's death is known as "probate." Although probate customs and laws have changed over time, the purpose has remained much the same: people formalize their intentions as to the transfer of their property at the time of their death (typically in a will), their property is collected, certain debts are paid from the estate, and the property is distributed.

Probate Administration

Today the probate process is a court-supervised process that is designed to sort out the transfer of a person's property at death.  Property subject to the probate process is that owned by a person at death, which does not pass to others by designation or ownership (i.e. life insurance policies and "payable on death" bank accounts). A common expression you may have heard is "probating a will."  This describes the process by which a person shows the court that the decedent (the person who died) followed all legal formalities in drafting his or her will.  What is often taught about the probate process is how to avoid it.  The movement to avoid probate is primarily motivated by the desire to avoid probate fees.  It is, in fact, quite possible to avoid the probate process completely. There are three primary ways to avoid probate and its protections: joint ownership with the right of survivorship, gifts, and revocable trusts. The probate system, however, exists for the protection of all the parties involved and the focus of this article is what occurs in probate.