Georgia Estate Planning and Probate Law: Why Do I Need a Will?
By Krause & Hirons revised 2011
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 not just for tax planning. Perhaps more important is providing for beneficiaries, properly positioning property, avoiding disputes among survivors, and determining who will care for children or adults in need of assistance..
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. Also, if the children have debt problems, creditors may be able to threaten the property. Joint accounts and joint tenancy property with children can cause similar problems.
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). Shared ownership with spouses who have debt problems may not be a good idea.
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 relatives who are heirs at law will inherit in this situation. Step-children do not qualify as heirs at law when there is no will.
Your Estate
Your estate includes all property that you own at the time of your death and property over which you have control, such as life insurance and retirement 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. Beware about assuming that property in a living trust will be shielded from creditors when you die. A state's laws should be checked to determine what rules apply. The trust terms might expose its assets to the creditors of the estate. Living trusts may or may not be appropriate for you.
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. If you reside elsewhere and own real property in Georgia, your will may need to be probated in Georgia to facilitate property transfers.
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 for you to tell the court who you want to raise your children. You can also designate a conservator for their property. In case you become disabled, in Georgia you can appoint a standby guardian for your children.
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 allows you to control the disposition of assets to your children upon your 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 or a financial institution 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.
Financial and Health Care Powers of Attorney, Advance Directives (Living Wills) 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 which can be part of health care advanced directives 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 in many cases probate expenses can be kept to a minimum with proper planning. A properly written will can eliminate costly reporting and bonding requirements. Much of our time is spent fixing problems which could have been avoided. We encourage more people to carefully address their estate needs.
Krause & Hirons and Estate Planning
Allen Hirons, one of the two partners in Krause & Hirons, has been assisting Georgians with wills and estate needs since 1983s. He has experience in establishing guardianships for incapacitated adults and has worked as a guardian ad litem for minor children in guardianships. He and his partner, Wayne Krause, have a combined 70 years of litigation experience. Beneficiaries unhappy with the will or the way the estate is administered may initiate litigation. Litigation may be needed to obtain estate assets. The firm's partners are experienced in personal injury law which may be needed when the negligence of others caused injuries to an individual who then died. Wayne Krause has over thirty-five years of experience in a creditor's rights and collections practice. An estate may need to collect debts or defend against creditor claims. Some estates have problems which require a familiarity with business issues. Both lawyers have handled business litigation and corporate formations. You may contact Krause & Hirons online or at 770-574-4124 or 866-605-6147.
