Wilson Legal, P.C. Cumming, GA Estate Planning - Probate Administration - Family & Criminal Law

Why you need a will.
Who needs a will?
What are the reasons to have a will?
What happens to you if you die wtihout a will?
How can a will help avoid or reduce estate taxes?
What are the Formal Requirements for a Will?
What property does a will control?
Can you dispose of your property in any way you'd like in a will?
Does a will increase probate expenses?
Should you avoid probate?
How do you avoid probate?
How much does a will cost?
How long is a will valid?
What effect does a subsequent marriage, divorce, or child have on a will?
Who should prepare a will?
What is a living will?

Why you need a will.
Confusion and myths surround the estate planning process - most of them are not true. A will is necessary to ensure that your estate is distributed among your loved ones and charities as you wish. A will can also save money and time in administering your estate once you are gone. Administering an estate is when an attorney or relative appointed or approved by the court will gather everything you own, let everyone who might want to know that you've died, pay your debts, and sell or give out your assets. If you don't have a will, the administrator will give the assets to the people designated in the state statute. Many times the person appointed to administer an estate is a child of the deceased and is also handling the memorial arrangements including selecting a coffin, hiring a minister, making arrangements for flowers and music and programs for both a viewing and church service as well as and a graveside service. Making advance arrangements allows your loved ones to grieve and spend more time with family by lessening the stress on your loved one saddled with the financial and business arrangements at the same time.
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Who needs a will?
Every adult should have a will. It doesn't matter if your single or married, with or without children, minor or adult children, specifid or no specific desires about who gets your property when you're gone. At the very least, your will can relieve the strain felt by your mom or dad, siblings or children who are left trying to find your important documents, take care of your affairs, and imagine how you would have wanted your funeral.
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What are the reasons to have a will?
With a will, you decide where you want your property to go and to whom. Without a will, the state in which your die chooses for you. Many times people you would never have contemplated obtain an inheritances in this manner. - A will may help you to lessen estate taxes imposed at your death because you may be alerted to things that you should change or things of which you were not aware. This is especially true if you hire an attorney to help you with yoru estate plan. - In a will, parents can name whom they want to be the guardian of their minor children. This by far is the most important part of wills for parents with minor children. Children orphaned in good families have been placed in foster care due to the intensity of family arguments over guardianship. - Your will can direct that a trust be set up for your beneficiaries instead of simply writing them a check. Trusts assist in protecting assets from creditors' claims, predatory spouses, and unwise choices of beneficiaries. Trusts are a very useful component in estate planning and they are affordable. - With many people today in second marriages, a will with appropriate trust provisions helps in ensuring that your assets ultimately pass to your children after being available for support of your surviving spouse. You may even use a trust as the primary way to protect yourself during your life as well as protecting your beneficiaries. - 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 especially if they disagree as to the person qualified to administer your estate. - A will lets you grant your exectuor full power to sell your property and liquidate your assets without having to petition the court for permission. This allows the executor to save on some expenses and handle matters immediately. Without a will, you wait (after you file) until the court nominates an administrator. - A will enables you to eliminate unnecessary expenses and court costs involved in the administration of an estate without a will. For instance, an administrator (does the same job as an executor but called an administrator when there's no will) is required to purchase a bond to cover any mistakes he or she might make. With a will, you may waive the requirement for a bond by stating that you disre that the executor serve without a bond. - A will enables you to provide gifts to charities. This state and country is filled with charities and non-profits working diligently for a cause. Most families are affected by one cause or another whether through personal experience or the experiences of friends and co-workers. Without a will, a person gives away their opportunity to support the organizations that they support and believe in. This, I believe, is a very sad and unnecessary result of the failure to plan.
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What happens to you if you die wtihout a will?
Believe it or not, the every state already has a plan for you if you die without a will. Dying without a will is called dying "intestate". This means that the laws of the state of your residence will apply. In Georgia, your surviving spouse and children would share the estate with some limitations. - Dying intestate creates additional costs in probating your estate such as the necessity of a bond for the administrator and sometimes more court appearances. - Plus you don't get to decide who shares your estate nor can you make provisions for family members with special needs. Without a will, your minor children may be entitled to their full inheritance upon turning age 18 whether or not they were ready to be financially responsible. - Children with special needs can use estate planning to protect their inheritance and still qualify for federal aid. A special trust can be created for them. You can put the necessary provision in your will or trust. - Persons inheriting money typically spend their inheritance within 18 months. Some estate planners call this "affluenza" where the child will have their new luxury car within 72 hours of the disbursement by the administrator meaning that they had already shopped for, picked out, and drawn the contract for the purchase beforehand. - Most important, you don't know who will be appointed guardian for your children. If your children are minors, the court may appoint a conservator (a person to manage the money) AND a guardian ( a person to manage the children). Courts may then require both the guardian and conservator to make annual accountings of the finances and activities of the children to prove the expenses were legitimate. These additional court appearances add expense either monetary or simply in time sacrifice for the guardian and conservator especially if attorneys become necessary due to allegations of any sort. - No charity, non-profit foundation, or church will receive the benefit of any gift from your estate unless your beneficiaries set it up on their own or give of their own portion of their inheritance. - Finally, dying without a will is a bad idea. Don't do it.
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How can a will help avoid or reduce estate taxes?
Sometimes estate taxes can be severe. The top rate assessed for people dying in 2009 is _____. Usually estate taxes apply to only a small portion of the population because the federal government (Uncle Sam) gives everyone a big coupon to use before any tax is applied. This year in 2009 that coupon is $3.5 million. - If you are concerned about estate taxes, a good attorney will include provisions to protect you and advise you on when changes may be necessary to maintain that protection. One way to do this is to take advantage of the coupon that each spouse has by giving to individuals other than the surviving spouse. - Preparations should be made before your death. After death, options are limited to reduce estate taxes. Since estate planning is very personal, recommendations will vary person to person and you should talk to your lawyer about your particular situation.
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What are the Formal Requirements for a Will?
A will is a legal written declaration of a person's intention for the disposition of his or her property after his or her death. The requirements to make a will are different in each state. In Georgia, you need the following: - You, the maker of the will, must be at least 14 years old. - You must be of sufficient mind and memory to realize you are making a will disposing of your proeprty. - You must know what property you own and who your beneficiaries are. - The will must be in writing. - The will must be signed by the maker of the will and witnesses by at least two witnesses in the special manner provided by law. These witnesses should not be persons who will receive property under your will. - The signing of the will must obey certain technical formalities. - You cannot write your will out on a piece of paper and sign it. This is called a hollographic will and it is not recognized in Georgia. If you try to take short cuts like this one, the probate court may treat you as having died without a will.
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What property does a will control?
A will controls the property passing through the testator's (testator = person who died with a will) probate estate. Property included in the testator's estate includes any property owned by that person upon his or her passing that is not otherwise controlled by contract or operation of law. Examples include: cars, personal proeprty, real estate and bank accounts held individually. - May types of proeprty pass directly to beneficiaries without regard to the provisions of the will. Examples are life insurance, retirement accounts, property owned as joint tenants of survivorship, brokerage accounts or bank accounts where the testator has named beneficiaries or designated beneficiaries with the account holder for "payment on death". - For example, a testator may say in a will that he wants all his property to go to his spouse, Sue. But testator forgot to change the beneficiary on his life insurance policy after his first divorce and first wife, Peggy, is still the named beneficiary. Then Peggy gets the proceeds of that policy, not Sue. - A good estate planner will coordinate your goals as the client with your probate and non-probate assets, and then, obtain confirmation that the proper beneficiaries are named. If your estate planner does not obtain these confirmations, it's important that you take the time to do this yourself. Even if you sent a change of beneficiary form, you should always get written confirmation that the form was received and the change was actually made.
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Can you dispose of your property in any way you'd like in a will?
A testator can make any disposition of proeprty that is not inconsistent with state law or policy. - The entire estate may be given to charity, to strangers or placed in trust for beloved pets excluding a surviving spouse and/or children. In these cases, the spouse or children could challenge the will if appropriate grounds exist for a competency or undue influence claim or ask the court for a limited distribution to them in spite of the will. Sometimes a court will give property to an excluded child or spouse inspite of a valid will. - Testators desiring to give their estate to a charity, pet trust, or stranger excluding even one person like a child or spouse may be better served by using a trust rather than a will for their estate planning to avoid a court conflict and interference with their goals and desires. It would be advisable to ask an attorney for help if this is your goal.
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Does a will increase probate expenses?
- No. A will can lessen the costs of probate. Typically, court costs are limited to filing and publications fees. Court costs are usually less than $500. Court costs do not include compensation to the executor or amounts charges by attorneys or accountants for the estate. - When you're talking about legal fees, much of the expense of probate is caused by a lack of planning. Siblings who disagree and fight and accuse each other of taking the family bible or keeping mom's rings are the biggest reasons for high legal fees. This is little stuff - mostly of sentimental value - that families spend thousands of dollars fighting about out of spite and hurt feelings mostly. Attorneys don't often help with the situation. The longer the fight carries on, the more the attorney gets paid. - Many times children (or other heirs) don't think about what they want to keep from their parents' estates until their in probate and (1) unable to find what they want (because it was lost and the will wasn't changed or it was sold) or (2) more than one person wants it. Of course, the blame game begins before you know it and your buried in accusations. - The solution to this scenario is simple. (1) Make a plan - put instructions that the kids are to follow in dividing the personal property and how you get around more than one kid wanting the same unique piece of family history. Put the plan in the will. (2) Write a value statement and letters to each child or beneficiary. Tell the kids (or other beneficiaries) how your earned your wealth, the values and life lessons you hope they gained, and the way that you expect them to treat each other and their own inheritance. - So many people look for and use the easy, one-step, in-a-box wills that they miss the little things that could save the family thousands of dollars. Families who get along just fine need solutions like the one above just like families who don't get along. The fights coming from sibling disagreements due to a lack of planning frequently result in deep-set bitterness and anger - whole generations of family refusing to speak to each other.
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Should you avoid probate?
- In Georgia we have a modern probate code and probate judges who work to move the process forward so that an estate is often closed in the same year that it is opened. - The probate process includes validating the testator's will ( or making the determination that he left behind no will), appointing the person who is going to administer the estate, publishing notice to creditors in the local paper, paying claims of the estate, and transferring the assets out to the beneficiaries. - Probate is also a public process and the records are public. Any person can attend and listen to the hearings. Any person can walk into the probate clerk's office and ask to see a file. Some people prefer to keep their financial worth completely private. This is possible by using trusts rather than a will. If you're wondering how bad it could be, pick up the story of the Johnson & Johnson probate of a will excluding the first and second spouses and all the children and giving the entire estate to a third spouse. The process took 4 years and was the most historically notable probate. You may also remember Anna Nicole Smith and her experience with the courts after her husband died. - Some states have very difficult probate processes. For example, in Florida, some say that you should simply hand the keys of your home over to your attorney. So property held in other states may be subject to the probate code of that state. It's important to know what you'll need to do for property held elsewhere. - If privacy is not a concern for you, the cost of probate is minimal in Georgia, so a will may be sufficent for you. A will is still recommended because of the benefit it can have in keeping your family together during the property transfer rather than working to tear them apart.
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How do you avoid probate?
? One way of avoiding probate is to place your assets in a revocable living trust. Revocable living trusts are explained more fulling under the category involving trusts. Another way to avoid probate, if your property is in another state, is to place the property into a limited liability company or limited partnership.
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How much does a will cost?
Attorneys typically charge an hourly rate or a flat fee for creating a will. Wilson Legal, PC offers both methods of payment as an option for the client. In any event, we offer estimates of cost prior to performing any work so that the client knows what to expect and is not surprised later. The process generally includes the following: - An initial meeting with the client - Legal research and recommendations for the documents the client needs - Drafting the documents - Revising and making changes and corrections to the documents - Executing and witnessing the signing of the documents - Clients may also have attended one or more complimentary classes at some point during the process. - The amount of time neededto complete the process depends on the complexity of each individual's personal situation. Generally, the more complex the planning, the more time it will take, and the more expensive it will be.
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How long is a will valid?
- The mere passage of time has no effect on the validity of the will. Individuals and families experience life changes every 2 to 5 years. So even though a will remains valid, the individual and family's needs change. Tax laws and statutes controlling wills and trusts change as well. - Your estate plan - whether it's a will or trust - should generally be reviewed every 2 to 3 years and more often if you have a major life change such as the birth or adoption of a child, a divorce or marriage, or a significant increase in assets. - Legally, a will does not take effect until the testator dies and the probate court approves the will. Prior to death, a competent testator can amend or revoke an existing will. No notice to or aproval of the beneficiaries is required. - You can change your will by writing a signing a new will or signing an amendment to the will called a "codicil". A codicil is a separate document that explains the changes to the will and you make it effective by using the same formalities as with a will.
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What effect does a subsequent marriage, divorce, or child have on a will?
Any of the above may impact your will. The degree of impact depends in part on the manner in which your will is written. You should have your will reviewed andupdated by a good attorney when any of these events takeplace.
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Who should prepare a will?
Many people turn to "box wills" from an office supply store or legal forms websites to draft their wills. What they fail to understand is that drafting a will involves making decisions requiring professional judgment which can be obtained only by years of training, experience and study. Only a practicing lawyer can avoid the innumerable pitfalls and advise you on the course best suited for your situation. You should avoid using do-it-yourself kits or Internet templates, as they may create more problems than they solve.
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What is a living will?
In Georgia, you have the right, so long as you are a competent adult, to make a written document known as a Health Care Directive which incorporates the living will. A living will instructs your doctor to withhold or withdraw life-sustaining procedures in the event of a terminal condition, coma and/or vegetative state. There are certain specific limitations on the contents, execution and witnessing of a living will and health care directive. You ask a lawyer for help if you wish to have one prepared.
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