Our practice areas include: Estate Planning, Wills, Trusts, Probate, and Estate Disputes.
For more details about some of the services we provide, either for document preparation or legal representation, please see below.
A will is a legal document that directs the distribution of a person’s assets and possessions at death. In a will, the testator (the person who makes a will) appoints an executor (also referred to as a personal representative) who undertakes the task of carrying out the instructions of the will. Often, an executor will hire an attorney to help with this task. The executor is in charge of gathering the assets of the estate, keeping them safe, paying the creditors of the estate, and distributing the remaining assets of the estate to the beneficiaries.
Beneficiaries are the people who receive the assets of the estate. For example, if a husband left all of his assets to his wife, then she would be the only beneficiary of the will. A properly executed will should name the beneficiaries of the estate and describe in sufficient detail what each beneficiary will receive, when the beneficiary should receive the proceeds, and what to do if a beneficiary is deceased.
A will is also used to name a guardian for minor children of the testator. This can be reason enough for a person with a minor child to execute a will. Without the nomination of a guardian for your minor children, the Probate Judge will ultimately decide who will be the guardian of a minor child whose parents have both passed away. A nominated guardian in a will would get approval from the Judge provided there was no compelling evidence to show that appointment of the nominated guardian was not in the minor’s best interest.
In order for a will to be effective, it must be executed, or signed, in the presence of two witnesses. It is also recommended that a notary public sign and notarize the will in order to “self-prove” the witnesses’ signatures. The testator must also have the mental capacity to understand what they are doing in the will.
From the Latin word “to prove”, probate is the process used by the Probate Court to establish or authenticate a will. To probate a will an executor files a petition with the court establishing the evidence required to authenticate the will. A probate petition requires the original will, signatures from the next of kin, and verification from the nominated executor. The Court will then issue Letters Testamentary to the executor if the petition is granted by the Court. The executor is then legally authorized to gather the assets of the deceased and administer the estate.
The Probate Court’s role is to serve as a forum for disputes regarding the estate and to ensure the executor does his or her job correctly. For example, if a beneficiary of the will believes the executor is not doing his or her job, then the beneficiary can ask the Probate Court to force the executor to do his or her duty or to have the executor removed.
Recently, the probate process has become a topic of much debate regarding its usefulness in comparison to its costs and time delays. Some people have had terrible experiences with Probate Courts. However, bad experiences are usually due to an improperly drawn will or a contested will, which is not the fault of the Probate Court. Much of the bad publicity about Probate Courts comes from cumbersome statutory requirements of Probate Courts from other states.
In Georgia the probate process is relatively quick and has minimal expenses, provided the will has been properly executed, the heirs are available, and there are no caveats and no difficult creditors. Many expenses and delays from the probate process arise from executors who do not do their job properly and disgruntled heirs or beneficiaries. Even though probate is not cumbersome for most, there are still those who want to avoid probate at all costs, and there are other options for those individuals, such as using a revocable living trust.
A trust is a legal entity capable of owning property and assets. It can be either revocable or irrevocable. The popular revocable living trust a.k.a inter vivos trust, is a good option for people who want to avoid probate. It can also be used to help avoid estate caveats, avoid dual probate in another state if real property is involved, and can be an excellent incapacity planning tool. Because a trust is capable of existing for an infinite period of time, it can also be used to hold your assets while you are alive for your benefit and then for the benefit of your beneficiaries after your death.
A testamentary trust is a trust that can be inserted within a person’s will and activated under certain conditions. For example, a testamentary trust may be activated if a testator dies with minor children. In such a case, the trust would hold the assets for the minor children. Trusts can also be used to provide for special needs beneficiaries or adults who lack the necessary financial skills to properly manage money or assets, as well as for adults who have creditor problems.
For married U.S. citizens with a combined estate of $11,200,000.00 or more in 2018, a trust is essential for capturing the unified tax credit of the first spouse to die. If your estate is over $11,200,000.00 in 2018 and you have not done any estate tax planning, you should seek immediate advice regarding estate tax consequences.
Irrevocable trusts are often used for estate tax planning, gifting programs, long term care planning, V.A. benefit planning, Medicaid planning, asset protection planning, special needs planning, and holding life insurance proceeds. The uses are varied. However, all irrevocable trusts are just that: irrevocable. Once such a trust is established, it can not be changed by the grantor (person who created the trust). Using an irrevocable trust should never be considered lightly as the consequences can be far reaching and devastating, especially when the laws change and make such a trust unnecessary.
Health Care Directives
Wills and some trusts are only useful in directing what happens to your assets at death. They may not address issues of incapacity or incompetence. A revocable trust can address this issue, but it can be an expensive alternative and must be used in conjunction with an advanced directive. A simple solution to dealing with incapacity or incompetence is to execute an advance directive for healthcare.
Effective July 1, 2007, the Georgia legislature enacted a Georgia health care directive. It contains four (4) parts. One allows you to appoint a health care agent for you, when you cannot make health care decisions for yourself. You have certain choices regarding autopsy, organ donation, body donation to medical schools and final disposition of your body.
Part two concerns your end of life treatment preferences. This part is the equivalent of Georgia’s living will prior to July 1, 2007.
Part three allows you to nominate a person to be your guardian if you ever need one.
Part four allows you to choose the effective date of the directive and also contains the signature portion of the document.
Durable Financial Power of Attorney
When a person (known as the principal) is still competent, he or she can execute a financial power of attorney and appoint an agent to act on his or her behalf. The power of attorney does not take any decision making power away from the principal, and the principal can determine when the agent would have the power to act. This document is recommended for anyone over the age of 18 and it is often executed by senior citizens as a way to transfer authority to another family member in the event of the principal’s incapacity.
An estate, depending on who is defining it, is the legal entity that remains after a person’s death, to hold assets and finalize a deceased’s affairs. Most litigation in the Probate Court concerns a person’s estate and who controls the estate, has an interest in the estate, or is entitled to the estate. It is always best to get a legal opinion on the best way to settle the estate of a deceased, as there can be many issues and financial traps involved.
Estates often produce litigation in the form of will contests, removal of an executor, or demands for distributions from an estate. Such actions can be lengthy and expensive. Our firm has experience with bringing or defending these types of actions. Such disputes can often be resolved before a trial or hearing is required.