Why make a will?
Why make a will? A will allows you to plan the disposition of your property upon your death. In other words, it is your statement of who gets what. If you don’t have a will, or if you don’t take some other steps to plan your estate, your property will be divided upon your death according to the laws of your state of residence. If you are a Georgia resident, your spouse and your children will divide it equally, except that a spouse cannot end up with less than 1/3. If you have no spouse or children, under current Georgia law your parents would receive your property. couple-lawyer if your parents are deceased at the time of your death, your brothers and sisters would divide your property. If you have no brothers and sisters, there are further rules about who your next of kin might be. These rules can be altered by a will. A will done by a person of sound mind, not under duress, can in effect change the law as to who inherits your property. It is a very powerful instrument.
A will must meet the legal requirements to be enforceable. Generally, a will must be in writing, and under Georgia law must be signed in the presence of two witnesses. Other states may require three witnesses and/or a Notary Public. A person making a will has to be of sound mind when the will was made. That means a person has to have the mental capacity to understand the choices being made. If a court proceeding for construction of a will is required, the goal of the proceeding is to determine the intent of the testator and put that into effect.
A will must be probated in order to put the will into effect after death. The processes of probate vary from state to state. In Georgia, the process is relatively efficient. If there are no objections to the will, and the witnesses can be located, probate can sometimes be accomplished in a few days.
A will cannot be amended except by a written document that is witnessed as required for an original will. Problems are created when people have a will and strike out portions, then write changes in by hand without these changes being witnessed. These actions can void the will. A person who wants to amend a will can instead prepare a codicil, or a new will, or a “republication” of the old will can be done.
Under Georgia law, certain actions can void a will. These include the birth of a child, adoption of a child, marriage, or divorce, to a limited extent. (The Georgia Code treats your spouse as though (s)he predeceased you) However, if the will provides that it is written in contemplation of such an event, then that event will not void the will. Often wills are drafted to plan for additional children. A will is not rendered void if it provides that any future children are to be included in the bequests. If a will does not contain such a provision, it can be rendered void if the maker has additional children. A number of people may have voided their will in this way, without knowing these rules.
There are alternatives to wills such as revocable living trusts. This involves creating a trust, which is a legal entity separate from the maker. Then, all assets are transferred to the trust and owned by the trust. The trust can name beneficiaries, so after the death of its creator, the property in the trust can go to the beneficiaries without having to probate a will. Such a trust involves more legal work upfront than a will, but it can limit or replace the process of probate.
Another alternative to a will is jointly titled property. Under Georgia law, if the property is owned by persons as joint tenants with survivorship, after the death of the first owner to die, the survivor receives title to the property without the need for further legal proceedings.
In estate planning, there are related topics such as advanced directives and powers of attorney. A will only takes effect at death. It is revocable until the maker dies. A durable power of attorney can be used for disability planning to have someone manage affairs when a person is unable to manage his or her own affairs during life. An advance directive can be used to make medical decisions, including whether life support will be used to prolong a person’s life when he or she is unable to communicate these decisions.
Estate taxes are one reason for estate planning. More accurately, avoidance of estate taxes is such a reason. Recently, Congress again increased the credits available against the estate tax so that only a few people have potential estate tax problems. The decline or advance of the stock market has also changed the net worth of people and can affect who needs estate tax planning. However, not everyone is aware of the assets that must be counted in the estate tax net worth assessments, such as life insurance. For instance, if a person carries a large amount of term life insurance, his or her taxable estate may be larger than believed. A detailed discussion of estate taxes is beyond the scope of this article and your estate planning professionals should be consulted in this regard.
Our firm has been assisting clients with wills and estate planning matters in Gwinnett County since 1976. Give us a call at 770-972-3803 and you and your loved ones will be glad you did.