I've been told by many folks that they have not done their estate planning because it is "too hard" or that they are confused or uneducated about what really needs to be done. Some folks have also told me over the years that they think it is too expensive, largely, I believe, because they are focusing on some estate planning tools that likely are not necessary, or appropriate, for their situation. The good news is that estate planning doesn't have to be hard. Over the next few posts in this subject area, I'm going to address the three main planning documents that everyone needs to have in place. Today, I'll start with an overview of wills in Georgia.
A Will, also called a Last Will and Testament, simply lists property that you own, and how you want to distribute it upon your death. The property that may be distributed under the will may include real estate, automobiles, jewelry, art, and other personal property, as well as money, stocks and bonds, etc. Certain property, such as real estate or financial accounts held jointly with another individual, or brokerage accounts and insurance policies that have a designated beneficiary are typically not distributed through the will.
The will should also make arrangements for minor children if no other custodial parent survives, and should designate a guardian to care for the children and a trustee to manage the children’s property until they reach the age of majority (at least). Many parents choose to hold property for their minor children in a trust (that is a part of the will) until the children reach a certain age, or to release it in stages (such as 1/3 at 21, 1/3 at 25, and the final amount at 30) so that their children do not squander the assets they receive, and to ensure that the children receive the assets at a time when they are mature enough to manage them.
Under Georgia law, any person 14 years of age or older, with the capacity to make a will may do so. Capacity is generally defined as being able to make rational decisions as to the disposition of property. The testator (meaning the person making the will) and two witnesses who are not beneficiaries of the will (or who serve in a capacity under the will) shall sign the will. Its also wise to have the testator and the two witnesses sign an affidavit before a Notary Public attesting that they each signed the will, that the testator declared the will to be his or her will, and it was his or her intention that it be the will. This affidavit is then attached to the will, and, when filed for probate upon the testator’s death, will permit the will to be admitted to probate without the testimony of one of the witnesses.
Its also important that you review your will periodically to ensure that it continues to reflect your wishes, and that your situation has not changed in a way that renders the will void. For example, the birth or adoption of a child will render your will invalid, unless the will expressly provides that it is to be valid in such a circumstance. Likewise, getting married also invalidates the will, as does obliterating or destroying the will itself (such as attempting to make written changes to it or marking out a section).
As a final note, Georgia also has a unique law that provides for a year’s support for a deceased person’s spouse and minor children, whether the deceased had a will or not. Under this statute, a spouse and minor children may receive an award of property or money equal to a year’s support. This distribution takes precedence over all other debts, except secured debts.
The process to complete a will is not difficult. We walk our clients through a comprehensive questionnaire to understand their situation, their dreams and objectives, and help them make key decisions to determine how to dispose of property at their death, and how to make sure that their minor-aged or young adult children are appropriately provided for. We can do this with relatively little time required from the client, and the fees are affordable. If you’ve put off your basic estate planning, now’s the time to get it done. Contact us today to discuss your situation. The Beck Law Firm, LLC: Because estate planning doesn't have to be hard.
Coming soon: check back for future posts including an overview of the Georgia Advance Directive for Healthcare as well as an overview of the Durable Power of Attorney.