Estate Planning FAQs

Estate planning is a decision a person makes during their lifetime for the transfer of an individual’s property after their death and may be accomplished by either a will and/or trust.

Estate planning allows someone to decide for themselves exactly who will benefit from their estate, and to what extent. It is also a person to make sure that the estate will not be depleted by taxes imposed on the transfer of assets at death and to protect the inheritance from the creditors of the beneficiaries.

Your estate consists of all property owned by you at death. An estate may contain both real property (real estate, including houses and investment properties) and personal property (all other property, including bank accounts, securities, jewelry, and automobiles).

No. There is no law in Georgia requiring individuals to complete a will. However, everyone should make a plan regarding the dispersal of their assets and property after they die. Creating a living trust or a will allows you to control how your assets will be distributed after you die. If you die without creating a will, you will not have any control over what happens to your personal property, real estate, and other assets. A living trust or will allows you to determine who will receive your personal property, real estate, and other assets.

You can also decide whether certain individuals should be prohibited from receiving any of your property. This is known as a disinheritance. Often, who you choose to be the individual responsible for winding up your affairs can make a big difference in how smoothly your estate is distributed. Many people who create a trust or make a will find peace of mind in knowing that they’ve selected someone they trust to see to their final affairs.

If you have young children under the age of 18, a will allows you to provide a plan for their care in the unfortunate circumstance that you and your spouse die while they are still minors.

Keep in mind that a revocable trust or a will is not permanent and can be changed throughout your lifetime. This allows you to make any changes or modifications should you decide to distribute your estate differently later.

A person who dies without a will is referred to as intestate. Georgia has enacted a set of laws that decides how a deceased individual’s property and money should be distributed if they pass without a will.  In general, Georgia’s laws provide a list of the decedent’s family in the order in which they will receive a portion of the decedent’s estate after taxes and creditors have been paid.  Yep, taxes and creditors come first if you die without a trust or a will.  The spouse and then the children then inherit.  This creates hardships and inequities for many types of families, especially blended families.

In the event the person dies single and has no surviving children, then their parents are next in line to receive the property. If they have no surviving parents at the time of death, the estate is divided among their surviving siblings in equal shares. If an individual passes without surviving siblings, the property goes to grandparents, aunts, uncles, or first cousins.

It is certainly possible to draft a will on your own if your estate is simple. If you possess only one house, one car, one checking account, and have only one child, then this could be accomplished on your own.  In preparing the will, it is important to meet certain basic procedural requirements. If your estate is more complex and/or involves significant assets, especially tax-deferred retirement accounts, it is essential to work with an attorney to ensure that your wishes are carried out concerning the disposition of your property.

You should not try to create a revocable or living trust without the assistance of an estate planning lawyer. A trust may cost more than a will, but the time, expense, and frustration that can be avoided by eliminating the probate process is well worth the cost.

Probate is a part of the Georgia Court System.  Probate is the process that courts use to divide your money and assets. If you have a will, then the will can be enforced through the probate courts by a probate judge. After an individual dies, the person named in his or her will as executor will file papers with the court, similar to a lawsuit, informing the court that the individual has passed. If there is no executor named in the will, the court will appoint someone to take on the role of executor. Next, the executor must prove the legitimacy of the person’s will and provide the court with an inventory of the decedent’s property and debts, as well as a list of people who are named in the will as beneficiaries.

Probate is a long, expensive, and often confusing process. Probate can take over a year to complete because of the many steps that the executor must accomplish. The more complex the estate or will, the longer it will take to tie up loose ends and the more it will cost the beneficiaries. The executor must secure the decedent’s assets and manage any assets that remain unsold or undistributed during the pendency of the probate proceeding. For specific assets that are not distributed to a beneficiary, the executor will have to get court approval to sell the property or distribute it. In many instances, a will may make a series of cash bequests. If the estate does not have enough cash on hand to satisfy this bequest, the executor may need to get permission to sell non-accounted-for assets to generate the cash needed to pay these bequests.

Oftentimes, the best option is to create a revocable or “living trust” so that a person’s family and loved ones can avoid the probate courts.

Yes. Probate is tedious and complicated. It will either be a stressful endeavor for your loved ones, or an expensive endeavor should they decide to hire a probate lawyer.  It is also lengthy.  The probate process can take over a year to complete. The more complex and intricate the estate and will, the longer it will take to accomplish all of the procedures necessary to tie up loose ends. The longer a probate proceeding lasts, the more fees that are associated with it.

Most of the time, the executor will hire an attorney to help him or her navigate the probate process. Like a regular civil court or criminal court, a probate court has its own set of complicated rules and procedures. For some families, probate is filled with many disputes and disagreements regarding the disposition of the property. If a family member or other individual disagrees with how the executor is handling the estate, he or she can file a petition seeking court review of the executor’s actions.  This happens more often than not.

Probate proceedings are public, and documents filed that are associated with the probate of a will are available for public viewing. In the modern era, all you need is a computer to look up public records. If your loved one had any personal or sensitive information in the will, this information will therefore be available to the public. Some wills contain very detailed information about family history, or controversial information like the disinheritance of a relative, and the public nature of a probate proceeding will create unwanted tension. Some savvy criminals peruse probate filings to identify homes to burglarize since most homes remain empty after the owner dies, leaving their valuables vulnerable.

A Revocable “living trust” allows you to avoid probate.  

A trust is a written document that places the assets of your choice into a trust for your benefit during your lifetime and then provides for transferring those assets to people you choose upon your death.  Legal title to the identified assets is placed in the trust while you are still alive. You will decide who will serve as the successor trustee after you die. The successor trustee will then manage the trust’s assets and see that any transfers are made to the people you want to inherit the assets in the trust.

One of the most attractive benefits of a trust is that they do not require probate. They are often referred to as “probate avoidance trusts”. Most wills must go through the probate process, which can be costly, time-consuming, and extremely public. The administration of a trust following a person’s death allows a faster distribution of the assets contained in the trust. When an individual who has created a trust dies, the successor trustee immediately owns all the assets in the trust and can begin distributing them.

A revocable “living trust” also provides a method for increasing your financial stability and providing a better outcome for the beneficiaries. A trust’s assets can remain in investment accounts during the person’s lifetime, allowing them to grow and increase in value. Additionally, a revocable “living trust” provides the individual creating the trust with significantly more privacy than a will. A trust can be designated as confidential and remain unavailable to everyone who isn’t a successor trustee.

A person must prove that he or she has standing to challenge the trust. Standing is a legal term that means that the individual must have experienced direct harm or would experience harm if the trust terms were enforced as written. For example, say Charles creates a revocable trust leaving all of his property “to all my children, Curtis and Samantha.” Later, he has a third child. That third child has standing to sue the trust on the basis that he or she was not named in the trust. Since, the trust clearly indicates that Charles wants to leave his assets to “all” of his children, the omission of the third child would seem to contravene his intent.

A trust can also be challenged on a technical basis. Georgia has many specific rules that must be adhered to when drafting a trust. For example, most states require the settlor of the trust (the person who creates it) to be at least 18 years of age at the time the trust is created. This is just one of the many technicalities in creating a trust, which is why hiring an experienced estate planning attorney is imperative when creating a trust.

Also, a trust may be challenged on the basis that fraud was involved when it was created. For example, if the settlor of the trust was under duress. Duress involves physical force or a threat of physical force at the time they executed the trust. If the trust was set up to accomplish an illegal act, like money laundering, it can be challenged on that basis. There are additional bases for challenging a trust. It’s important to check with an attorney before pursuing a potential claim.

You cannot leave money to a pet through a will. Under Georgia law, pets are considered property, and property cannot inherit property.  You can, however, leave money for pet expenses by leaving it to the person who will be taking the pet. This is rather than leaving money directly to the pet. In this situation, it is also important to identify a backup caregiver and provide care instructions. Additionally,  you should specify that the funds you are leaving to any caregivers are intended for your pet’s care. An option is to set up a trust for your pet, though this is more expensive.

Additionally, it will require the help of a qualified lawyer. In the absence of a will or trust, there are animal care non-profit and rescue organizations that can help locate a good home for your pet. However, it can be risky to rely on this option if such organizations do not have the capacity. Finding a friend or family member who will agree, either legally or informally, to take care of your pet and setting aside funds and information for pet care is the safest option.

Yes. When leaving money to a charity, it is important to take into account certain taxes and exemptions that can be utilized. Leaving money to a charity in your trust or will typically result in a charitable tax credit of up to 50% and may result in other exemptions from estate tax calculations. Leaving money to a charity will result in a reduction of the inheritance tax that must be paid. When identifying the charities to which you would like to donate, it is important to ensure that they maintain a government-recognized charitable organization status.

When you leave large gifts to charities in your trust or will, you should be aware that a family member might contest the bequest. Some family members may feel slighted when they realize that the family member bequeathed more to a charity than to him or her. The probate system allows a family member to file an objection. These objections can include an objection to the amount of money provided to a charity.

A trustee can also be directed to make a contribution to a charity upon your passing. The trust documents can contain language that directs the trustee to provide a specific monetary amount or percentage of the value of the trust’s assets to a charity after your death or upon the dissolution of the trust. The specific charity or charities need to also be identified.

A guardianship is a legally recognized status that is used when a person can no longer make sound or safe decisions regarding their medical care. A guardianship essentially involves suspending or removing a person’s rights, so the appointment process is lengthy. To appoint a guardian, one must apply to the court. A detailed explanation must be provided of the events, or concerns, requiring the appointment. The law also requires clear and convincing evidence to prove the person’s lack of capacity. In addition, the individual has the right to object.

After the court appoints a guardian, they will have responsibilities when it comes to the individual’s care and treatment. The guardian will oversee any medical treatment that the individual receives in addition to determining the individual’s location of residence. The guardian can make end-of-life decisions on behalf of the individual. Guardians can also determine when it is appropriate to release the individual’s private information. Due to the broad scope that a guardian receives, courts take great care when pursuing the appointment of a guardian.

To avoid the process of going to court to have a guardian appointed, while you are still healthy, you can create an Advanced Healthcare Directive or “living will” and decide who you would like to perform these essential functions for yourself, instead of leaving it up to the courts.

A “living will”, legally called an Advanced Healthcare Directive is a signed document that allows you to appoint someone to make healthcare decisions for you if you are unable to make them for yourself.  It also details a person’s wishes regarding his or her medical treatment if they are no longer able to communicate treatment preferences for themselves.

An Advanced Healthcare Directive allows you to make treatment decisions while you are still capable and relieves your loved ones of the stress and pressure of having to make life-or-death decisions on your behalf.

An advanced healthcare directive provides specific instructions to healthcare agents should a range of circumstances arise. For example, if you are in a coma, in a vegetative state unaware of your environment, or terminally ill, the advanced healthcare directive allows your treating physicians to know what measures they should use to treat you. In many cases, people use advanced healthcare directives to let their physicians know that they prefer to die naturally or be kept alive by machines for as long as possible.

A living will or advanced healthcare directive can ensure that your wishes are carried out even when you are unable to express them or express yourself. Many people think that these options are only for the elderly, but even young persons should have one just in case a tragic event occurs.

A conservatorship is similar to a guardianship in that it is a legally recognized status that is used when a person can no longer make sound or safe decisions regarding their assets and property. A conservatorship essentially involves suspending or removing a person’s rights, so the appointment process is lengthy. To appoint a conservator, a person must apply to the court. This person and provide a detailed explanation of the events or concerns necessitating the appointment of a conservator.

After the court appoints a conservator, they will have responsibilities when it comes to the individual’s financial affairs. The conservator will oversee any financial decision regarding the person’s finances, property, or other assets.

To avoid the process of going to court to have a conservator appointed, while you are still healthy, you can create a Power of Attorney and decide who you would like to perform these essential functions for yourself, instead of leaving it up to the courts.

A power of attorney is a document that grants an individual the right to act as the person’s agent should they become incapacitated. The individual who creates the power of attorney, often called the principal, can dictate the scope of the agent’s authority. For example, the principal can designate one person to deal with one particular issue, like bank accounts or retirement accounts. This is referred to as a specific power of attorney. Alternatively, it grants the agent broad authority to address any issues that may arise in the event of their incapacitation. The latter version is called a general power of attorney.

An agent is responsible for maintaining accurate and diligent records of all transactions and decisions made on the principal’s behalf. Types of decisions an agent can make include gifts of money, financial decisions, and filing or defending lawsuits.

Current federal laws require us to pay three types of taxes on a transfer of property: estate tax, generation-skipping transfer tax, and gift tax. An estate tax is a tax when you transfer property at the time of your death. The tax is on your “gross estate.” This includes every asset and interest that a person owns or had an interest in at the time of his or her death.

After calculating the gross estate, certain deductions can be made on the “taxable estate.” These deductions include funeral expenses, claims against the estate, administration expenses, contributions to charities, and certain bequests made to surviving spouses. Calculating the amount of inheritance tax owed also requires determining the tentative tax base that applies. The tentative tax base schedule changes each year. Check with the IRS’ website to determine which figure will apply to a particular estate.

Georgia does not have an estate tax.