Georgia Wills, Trusts, Probate and Estate Planning Blog

Georgia Estate Planning and Probate Law: Why Do I Need a Will?

Introduction

Few people enjoy estate planning. This is one reason so many lawyers die without wills. Estate planning is uncomfortable, but you should consider it a labor of love for your family and friends. What you do or fail to do now, may significantly simplify or complicate the tasks for your family and friends after you have passed on. Estate planning is often thought of as relating solely to tax planning. In reality, providing for beneficiaries, and determining who will care for children or adults in need of assistance is far more important.

Most will and related estate planning should be tailored to the personal requirements of each individual or family. While some people may wish to try a will kit, or writing their own will, this is risky business. There are a lot of misconceptions. A very common mistake we see in Georgia is the belief that it is best to place one's real property in the names of one's children before death. Unfortunately, this action may unintentionally cause the recipients of the property to incur unnecessary capital gains taxes when they sell the property - taxes which might have been avoided had the property been given at death through a will.

Another very common difficulty experienced by property owners in Georgia comes from the way they hold property. We have found that most married couples who own real estate have deeds which describe the property as owned by "John and Mary Smith". The Smiths think they both own the whole property. However, with the title transferred to "John and Mary Smith", under Georgia law, John owns half the house and Mary owns half the house. When John dies without a will, Mary finds herself suddenly sharing ownership of "her" house with her three children because they, along with Mary, have inherited the half of the house owned by John. This problem can be a costly disaster, especially if the children are not on good terms with the surviving spouse, (who may not be their father or mother).

A related area of concern is addressing the needs of families with spouses who have remarried and have brought their children from prior marriages into the household. Since the children of one spouse are not related by blood to the step-parent, they have no protection under Georgia law when their own parent dies and then the step-parent dies without a will. Only the blood relatives will inherit in this situation.

Your Estate

Your estate includes all the property that you own at the time of your death and property over which you have control, such as life insurance proceeds. Through your will you can give away any property you own at the time of your death. There could be certain assets that you own that may pass outside of your will, by way of a beneficiary designation, such as your retirement plans, life insurance, bank accounts, IRAs, and living trust assets or property subject to a contract. Property held in joint accounts and joint tenancy property may pass automatically to the survivors on those accounts.

Who Needs a Will

Whether you are married, single, have minor children or own even a nominal amount of personal assets or property, you should have a will. In fact, every eligible adult should have a will or other means to control the disposition of his or her assets. Even people who have living trusts should consider preparing a will because, without a will, any property not named in the living trust will pass according to Georgia law, not necessarily in accordance with a person's wishes. In Georgia, if you are competent and age 14 or older, you can have a will.

Will Requirements

Every state has its own will requirements. If you die, while a resident of Georgia, Georgia's requirements will be used to interpret the validity of the will and to determine the probate procedures. Thus, if you write your will in another state and move to Georgia, you should have your will examined to make sure it is valid.

There may be requirements in some states which are not applicable in Georgia and wills from these states are not written to take the benefit of Georgia's fairly simple probate procedures. For example, Georgia allows for wills to be witnessed using a method which makes it unnecessary to find witnesses in order to prove the will.

If a will does not satisfy basic procedural requirements, it may be rejected by the Probate Court and the property of the deceased person will be given to certain heirs as determined by a Georgia law, not by the wishes of the decedent. Certain family members or friends may have a rude awakening upon visiting the lawyer's office. What Daddy promised them in a conversation or even a letter, is not what is going to happen. In addition to avoiding such surprises, a will allows a person to give specific property such as family heirlooms, to particular people and to make provisions for charities.

Your Children

If you have minor children, your greatest concern may not be who gets your assets, but rather, who will take care of your children. The courts are given broad discretion to determine who will take care of minor children if both parents die or if the surviving parent is unavailable. Even though the court has the ultimate authority to appoint a guardian, a will is the only way to tell the court who you want to raise your children.

Further, a will can set forth what assets your children will receive, how the assets will be distributed, and who will manage the assets until such time as your children are able to manage the assets themselves. Fortunately, a will affords you many options to control the disposition of assets to your children if you should meet with an untimely death. Through a will, you can leave instructions on how the property will be held and who will act as the guardian, trustee or custodian of that property. By establishing a trust for your children in your will, you can even condition when and how they will receive benefits.

Your Personal Representative

A personal representative is responsible for making sure property is distributed according to the deceased person's wishes. This person is also called the executor or executrix. People often name their spouse, a competent relative or trusted friend as personal representative of their estate. An alternative personal representative should always be named, in the event that your original choice cannot serve for any reason. If you fail to name a personal representative, the court will appoint one for you. The person you choose should be able to make competent financial decisions and should be someone you trust.

Living Wills, Powers of Attorney and other Estate Planning Tools

Estate planning is not just about wills. Preparing powers of attorney to cover business matters, and health care issues is also very important. Repositioning ownership interests in land, bank accounts or stock can also be useful. Making sure beneficiary designations in life insurance policies, IRAs, pensions and similar investments are consistent with a will may make or break your estate plan. Living Wills help guide families when you cannot express your opinions and may ease the anxiety of your family.

Conclusion

Georgia law has relatively simple probate laws and probate expenses can be kept to a minimum with a properly written will which eliminates more costly reporting and bonding requirements. We have found that often more of our time is spent fixing problems caused by in- adequate or non-existent planning then in writing wills. We would like to reverse that experience and encourage more people to carefully address their estate needs.

SOURCE: FindLaw in an article by Krause & Hirons

Writing Your Will

Everyone knows you should have a will, but apparently more than half of us haven’t gotten around to it yet. Here is some information that might convince you to get it done.

Why should I go to the trouble of writing a will?

A will lets you control what happens to your property. If you have minor children, a will enables you to designate who will care for them after your death. Through a will you can nominate a legal guardian for your children and name an executor to handle the distribution of your estate to your designated beneficiaries.

What happens if I die without a will?

Since your property must still be distributed, the probate court in your area will appoint someone as the administrator of your estate to distribute the property in accordance with the state laws. The costs associated with this are more expensive than having an executor named by you in advance and must be paid out of your estate before any property is distributed.

What is a video will?

More and more people are preparing a video in which they read the will and explain why certain gifts were made and others not made. The video recording might also show the execution of the will. Should a disgruntled relative decide to challenge the will, the video can provide compelling proof that the person making the will was mentally competent and observed the formalities of execution.

Keep in mind that videos do not last forever and are subject to damage. You should consult a lawyer before making such a video to find out about your state’s laws on video wills. Generally, such a video would supplement, not substitute, a properly prepared written will.

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

Why You (Yes, You) Need a Will

Confusion and myths surround the estate planning process. This pamphlet explains why all adults, regardless of wealth, should have a properly drafted and executed will. A will is necessary for ensuring that your estate is distributed among your loved ones and charities as you wish. A will also can save money and time in administering your estate once you are gone, which will lessen the burden on your beneficiaries and maximize the legacy left to them.

Who Needs a Will?

Every adult should have a will. Whether you have few assets, many assets, minor children, no children, or specific desires about who gets your property, you should have a will.

What are the Reasons to Have a Will?

• With a will, you decide how your property will be distributed. You may dispose of your property as you choose.
• A will may help you to lessen estate taxes imposed at your death (see more about estate taxes below).
• In a will, parents can name whom they want to be the guardian over their minor children.
• Your will can direct that your assets pass to your beneficiaries by way of a trust instead of outright distribution to the beneficiary. Trusts may assist in protecting assets from the claims of creditors or unwise choices made by beneficiaries. Trusts are a useful component in estate tax planning.
• With many people today in second marriages, a will with appropriate trust provisions may be helpful in ensuring that your assets ultimately pass to your children after being available for support of your surviving spouse. Without a will restricting those assets, the surviving spouse could be free to leave a portion of those assets at his or her death to a new spouse or to the spouse's children from another relationship.
• A will lets you choose the individual, bank or trust company to serve as executor of your estate. The executor will manage and settle your estate according to the law and your desires expressed in your will. Without a will, your beneficiaries would have to petition the court for an administrator to serve, which can be expensive and invite disagreement.
• A will lets you grant your executor full power to sell your property and liquidate your assets without having to petition the court for permission.
• A will enables you to eliminate unnecessary expenses and court costs involved in the administration of an estate without a will. For instance, bond premiums can be avoided by stating that you desire that the executor serve without a bond.

• You can make gifts to charity through your will.

Why You May Need a Will or Advance Directives

How to Make Sure Your Life Does Not
Become a Fractured Fairy Tale

This article uses fables to help explain why a Last Will and Testament, Living Will, and Powers of Attorney are important

Jack and Jill
(Why you need a Power of Attorney)

Jack and Jill owned a house together and lived as a couple for many years but they were not married. One day they went up a hill to fetch a pail of water. Jack fell down and broke his crown and Jill came tumbling after. What happened next? Jill wasn't injured but Jack was rushed to the hospital. Jack was in a coma.

Jill went to visit Jack every day but Jack's family didn't let her see him. Jill became very lonely and missed Jack a lot. Why was Jack's family able to keep Jill from visiting Jack? Jack and Jill considered themselves a couple but Georgia law didn't recognize their relationship because they weren't married. Thus, Jill had no legal right to see Jack.

Jack's family told the doctor to treat Jack with chemical-based drugs. Jill knew Jack wouldn't want to take chemical-based drugs. Why was Jack's family able to give him treatment he wouldn't want? Because Georgia law gave Jack's family the power to make health care decisions for him when he couldn't make his own decisions.

Jack started to get disability checks from work, but Jill wasn't able to cash the checks. She couldn't pay the mortgage and other bills because she didn't have enough money.

How could Jack and Jill make sure these bad things don't happen again? Jack and Jill could each sign a Durable Medical Power of Attorney for Healthcare . This document allows you to name someone you trust, such as a spouse or other family member, partner, or friend, to make health care decisions for you in case you can't make the decisions yourself. This person is called your Agent . A Durable Medical Power of Attorney also gives your agent the right to visit you and to decide what to do with your body after you die.

Jack and Jill could also sign a Financial Power of Attorney . This document names an agent to handle your finances. With a Financial Power of Attorney, Jill could handle Jack's finances and pay their bills. Your agent must be someone you trust. In some cases agents have abused their power and emptied bank accounts, sold houses, and taken out loans. In most cases the benefits are greater than the risks, but an agent's abuse of a Financial Power of Attorney can cause you problems.

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.

Changing Your Will: Codicils

You can change, add to or even revoke your will any time before your death as long as you are physically and mentally competent to make the change. An amendment to a will is called a codicil. (It sounds like a prescription medicine, and you might think of it as a cure for an obsolete will.) You can't simply cross out old provisions in your will and scribble in new ones if you want the changes to be effective; you have to formally execute a codicil, using the same formalities as when executing the will itself. Of course, it's vital that such codicils be dated so the court can tell whether they were made after your will. The codicil should be kept with the will. As the same mental ability and freedom from undue influence is required for a codicil as for a will, if the changes are substantial, it may be advisable to write a new will. It's a good idea to check with your lawyer before revising or revoking your will.

You also have to watch out for ademption, which is what happens if you will something (say, your antique automobile) to someone, but by the time you die, you no longer own that auto. In this case, the gift would fail completely; the beneficiary wouldn't be entitled to another vehicle. (A good will avoids this by using language like, "I give my antique Rolls Royce, to my son-in-law, Joe, but if I don't own it, at the time of my death, I give him or her a choice of any automobile I do own at the time of my death.")

Sidebar:   Do I Need to Update My Estate Plan? A Checklist

Ask yourself if any of these changes have occurred in your life since you executed your will or trust.

• Have you married or been divorced?
• Have relatives or other beneficiaries or the executor died or has your relationship with them changed substantially and no provision is made in your will or trust for this contingency?
• Has the mental or physical condition of any of your relatives or other beneficiaries or of your executor changed substantially?
• Have you had more children or grandchildren, or have children gone to college or moved out of, or into, your home?
• Have you moved to another state?
• Have you bought, sold, or mortgaged a business or real estate?
• Have you acquired major assets (car, home bank account)?
• Have your business or financial circumstances changed significantly (estate size, pension, salary, ownership)?
• Has your state law (or have federal tax laws) changed in a way that might affect your tax and estate planning?

If you do update your estate plan, you should also update your final instruction and will with the addresses and phone numbers of beneficiaries, trustees, executors and others mentioned in estate planning documents. It will make settling the estate much easier

SOURCE: FindLaw

The Seven Essentials of a Valid Will

To be valid, your will doesn't have to conform to a specific formula. For example, in states that recognize handwritten wills, some wills scrawled on the back of an envelope have stood up in court. However, there are certain elements that usually must be present.

1. You must be of legal age to make a will. This is 18 in most states, but may be several years older or younger in some places--check with a lawyer if you need to know.

2. You must be of sound mind, which means that you should know you're executing a will, know the general nature and extent of your property, and know the objects of your bounty, i.e. your spouse, descendants and other relatives that would ordinarily be expected to share in your estate. Although you do not have to be found mentally incompetent by a court for your will to be challenged on the grounds of incompetence, the law presumes that a testator was of sound mind, and the standard for proving otherwise is very high--much more than mere absent-mindedness or forgetfulness.
   Note: Because disgruntled relatives who want to challenge a will occasionally use this sound-mind requirement to attack the testator's mental capacity, in special cases the execution of a will is sometimes videotaped and kept on file, so if someone raises a question after the testator dies, the videotape can be good evidence of testamentary capacity.

3. The will must have a substantive provision that disposes of property, and it must indicate your intent to make the document your final word on what happens to your property--that is, that you really intended it to be a will.

4. The will must be voluntarily signed by the testator, unless illness or accident or illiteracy prevents it, in which case you can direct that your lawyer or one of the witnesses sign for you. This requires a lawyer's guidance, or at least knowledge of your state's law, since an invalid signature could void a will.

5. Although oral wills are permitted in limited circumstances in some states, wills must usually be written and witnessed. The will scrawled on an envelope won't work in these states. To be safe, don't handwrite a will if you can avoid it.

6. Though some states do allow informal oral and written wills in certain circumstances, all states have standards for formal wills. Writing a formal will and following these standards helps assure that your wishes will be followed after your death. In almost all states, the signing of a formal will must be witnessed by at least two adults who understand what they are witnessing and are competent to testify in court. There have to be three in Vermont and New Hampshire, three plus a notary in Puerto Rico. In most states the witnesses have to be disinterested (i.e., not getting anything in your will). If they aren't, you run the risk of voiding certain provisions in the will, opening it to challenge, or invalidating the entire will.

7. A formal will must be properly executed, which means that it contains a statement at the end attesting that it is your will, the date and place of signing, and the fact that you signed it before witnesses, who then also signed it in your presence--and watched each other signing it. Most states allow so-called self-proving affidavits, which eliminate the necessity of having the witnesses testify that they witnessed the signing; the affidavit is proof enough. In other states, if the witnesses are dead or unavailable, the court may have to get someone else to verify the legitimacy of their signatures.

If your will doesn't meet these conditions, it might be disallowed by a court, and your estate would then be distributed according to a previous will or under your state's intestacy laws.

Sidebar: Kinds of Wills

Here's a brief glossary of terms used in the law for various kinds of wills:
Simple will. A will that just provides for the outright distribution of assets for an uncomplicated estate.
Testamentary trust will. A will that sets up one or more trusts for some of your estate assets to go to after you die.
Pourover will. A will that leaves some of your assets in a trust that you had already established before your death.
Holographic will. A will that is unwitnessed and in the testator's handwriting. About 20 states recognize the validity of such wills.
Oral will. (also called nuncupative will). A will that is spoken, not written down. A few states permit these.
Joint will. One document that covers both a husband and wife (or any two people). These are often a big mistake and are especially inadvisable for estates larger than $675,000.
Living will. Not really a will at all--since it has force while you are still alive and doesn't dispose of property--but often executed at the same time you make your will. Tells doctors and hospitals whether you wish life support in the event you are terminally ill or, as a result of accident or illness, cannot be restored to consciousness. See chapter twelve.

SOURCE: FindLaw

Wills: An Overview

Wills are the most common way for people to state their preferences about how their estates should be handled after their deaths. Many people use their wills to express their deepest sentiments toward their loved ones. A well-written will eases the transition for survivors by transferring property quickly and avoiding many tax burdens. Despite these advantages, many estimates figure that at least seventy percent of Americans do not have valid wills. While it is difficult to contemplate mortality, many people find that great peace of mind results from putting their affairs in order.

Wills vary from extremely simple single-page documents to elaborate volumes, depending on the estate size and preferences of the person making the will (the "testator"). Wills describe the estate, the people who will receive specific property (the "devisees"), and even special instructions about care of minor children, gifts to charity, and formation of posthumous trusts. Many people choose to disinherit people who might usually be expected to receive property. For all these examples, the testator must follow the legal rules for wills in order to make the document effective.

Will Requirements

Formal requirements for wills vary from state to state. Generally, the testator must be an adult of "sound mind," meaning that the testator must be able to understand the full meaning of the document. Wills must be written. Some states allow a will to be in the testator's own handwriting, but a better and more enforceable option is to use a typed or pre-printed document. A testator must sign his or her own will, unless he or she is unable to do so, in which case the testator must direct another person to sign the will in the presence of witnesses, and the signature must be witnessed and/or notarized. A valid will remains in force until revoked or superseded by a subsequent valid will. Some changes may be made by amendment (called a "codicil") without requiring a complete rewrite