Wills, Probate, Trusts, and Estates

Estate Planning 

Have you decided who will get your house, your money, and other assets when you die? Do you have a plan for who will take care of you and manage your finances when you are sick or unable to take care of yourself? This process is called estate planning. We can help you make these important decisions and put them in writing, so your family will follow your wishes. Handling an estate is much easier if there is a will.

Our best referrals for wills are from people who handled an estate without one!

Your will dictates who will receive your assets after your death. Without one, your assets will be divided among your heirs according to rule of law. This may be far from what you want. For more detail see “Why make a will?” below on this page.

In estate planning, there are related topics such as Advanced Directives and Financial Powers of Attorney. The health care power of attorney, or living will is now known as an “Advance Directive.” The advance directive shows your preferences for life support decisions. The financial durable power of attorney can be used for financial planning during disability to have someone manage affairs when a person is unable to manage his or her own affairs during life.

The financial power of attorney is important, it can make a guardianship necessary for the person who cannot manage his or her affairs.

A living trust is also an option in estate planning that can supplement or replace a will in some cases. A living trust can be an attractive estate planning alternative. To be effective, all your property must go into your living trust, and be titled under your name as trustee.

Estate taxes currently only apply to the wealthiest 1% of the US population. In that situation there are estate planning steps to avoid unnecessary taxes if needed. One day our government may bring the estate taxes back and if so planning to minimize will be available.

In connection with estate planning or business planning, we also offer asset protection and the formation of corporations and LLCs for our clients. 

Estate Planning Tidbits are at the end of this section.

Estate Litigation

We handle all types of litigation in probate court, such as will contests, and suits to remove executors.

Our firm has been assisting clients with wills and estate planning matters  for over 40 years. Give us a call and you and your loved ones will be glad you did.

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. There are further rules about who your next of kin might be if no parents.
• These rules can be altered by a will. A will can in effect change the law as to who inherits your property. It is a very powerful instrument.
• A will must meet many legal requirements to be enforceable. It must be in writing, be properly witnessed, and contain the correct provisions for your specific estate. The maker of the Will must be mentally sound and not under undue influence. 
• Many online will forms leave out important provisions. These provisions include excusing the executor from having to be bonded  or excused from making reports to the court.
• A will must be probated in order to put the will into effect after death. The processes of probate vary from state to state.
• A will cannot be amended except by a written document that is witnessed as required for an original will. A person who wants to amend a will should instead prepare a codicil or a new will.
• 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 he or she 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.
• 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.
  Our firm has been assisting clients with wills and estate planning matters in  for over 40 years. Give us a call and you and your loved ones will be glad you did.

Estate Planning Tidbits :  

-A living will deals with control of life support when a person is in a coma, terminally ill, or near the end of life. In Georgia there is an Advanced Directive, which covers that subject and also appoints a healthcare agent to make decisions when a person cannot communicate their own preferences. We offer a package price for estate planning documents for couples. The package includes a Will, Financial Power of Attorney, and Advance Directive.  A Financial Power of Attorney can keep a person from having to have a guardian once they cannot manage their own affairs.

-We offer a free will and trust preparation checklist and information package, Email us at: david.walker.law.firm@gmail.com.

- Georgia now allows an estate planning document for mental health planning,  to provide for a psychiatric advance directive; to provide for a competent adult to express  his or her mental health care treatment preferences and desires directly through instructions  written in advance and indirectly through appointing an agent to make mental health care  decisions on behalf of that person.   A competent adult may execute a psychiatric advance directive containing mental health care preferences, information, or instructions regarding his or her mental health care that authorizes and consents to a provider or facility acting in accordance with such directive. A directive may include consent to or refusal of specified mental health care. In addition to wills, trusts and probates, we can provide you with this Advance Directive. 

-An alternative to a prenuptial agreement is a trust. A person can  place assets prior to marriage in a trust and the assets are not marital property. The new spouse is not involved. In case of divorce, the beneficiary owns the assets. 

-Estate planning is more than postmortem planning. It includes planning for the day you may not be able to manage your affairs. It also includes planning for  appointing someone to help you with medical issues when you can't communicate a decision. That includes life support decisions and any medical decisions you can't communicate. The financial power of attorney, medical advanced directive, and a revocable trust or a will are necessary. The revocable living trust is a great solution for postmortem planning and planning for incapacity. You control the trust while you are alive, and if you become incapacitated your alternate trustee can step in to help manage your affairs.

-A revocable living trust is a flexible and smart way of estate planning-it can address not only distribution of your estate, but solutions for your incapacity if that happens later in life. 

- Joint revocable trusts: A married couple can take more advantage of the benefits of a revocable trust by using a joint revocable trust. The married couple will serve as joint trustees, and the trust is revocable and amendable so long as at least one trustee is living. If one becomes incapacitated, the other manages their affairs. Because it is joint, rather than each person having their own trust, fewer bank accounts for the trust would generally be needed. As long as the couple puts all of their property into the trust, probate can be avoided. Their affairs remain private because the trust is not a public document, unlike a will which is public once it is filed for probate. A successor trustee can be named to serve if both have become incapacited. So the joint revocable trust can be used for numerous purposes. 

-  Our wills contain this message, so our clients know that the will does not change the beneficiary of many financial accounts:

   "I am aware that proceeds of life insurance, annuities, IRA or 401k accounts, or any financial account that includes a designated beneficiary will go to the named beneficiary. If the beneficiary is not my estate, those proceeds will not pass to the beneficiaries of my will, but to the named beneficiary on the account. Likewise, pay on death accounts (POD), or accounts or property held jointly with survivorship, will go to the surviving owner, and not pass to the beneficiaries of my will. The proceeds of joint bank accounts are presumed to be the property of the surviving depositor unless I specifically provide otherwise."

-     A Revocable Living Trust is a smart and flexible solution for how to plan your estate. Here are some advantages:

· A revocable trust is private, while a will, after probate, is generally a public record.
· It makes handling your estate easier for your family.
· A revocable trust is not only for the distribution of your property but also solutions for your incapacity if you become unable to manage your affairs.

   -   In Georgia, if a deceased person left no will, or if the Court deems the Will to be invalid, the Estate can be handled through a Petition for No Administration Necessary. This Petition allows for the distribution of the property of the deceased, as agreed upon by all heirs. This petition can only be done when all heirs agree to the distribution of the property.

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-A man in his 70s told me his story. He had outlived 3 children and has 4 grandchildren. His wife had just died. Her heirs were the man and the grandchildren. Their lifetime home was in her name. There was no will. The man found out he would only receive one-third of the value of the home. 3 of the grandchildren wanted to deed their interest in the house to their grandfather. One did not. An expensive court proceeding is necessary to try to get the house in his name.
He told me his story and he said I wish we had made our wills.
The moral is to get your will or living trust done before it's too late.

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- Revocable trusts are excellent estate planning tools. However, they are not if not properly funded. Funding your trust means placing your assets in the trust. In order to avoid probate, all of your assets that are titled in your name generally should be transferred to the trust. If an asset in your name is left out of the trust, you may have to probate your pour-over will. That is a type of will that should come with your revocable trust, to make sure any property you failed to transfer into the trust ends up a part of the trust.

Financial assets such as IRAs, 401(k)s, or annuities, which have a beneficiary named, generally should not be owned by the trust. The trust can be a beneficiary however.

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-We have just completed representation of an Executor of a decedent's estate, who was threatened with litigation by various beneficiaries for no reason.   We assisted the executor in providing an accounting and completing settlement of the estate without litigation. This matter involved probate of a will. We ofter represent and /or counsel executors and administrators of estates.

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-We are preparing trusts for our clients often. A revocable trust is an excellent choice for estate planning about real estate. The trust can be designed to meet the needs of family members, by controlling when assets are distributed and how trust assets are invested. Distribution of your assets can be controlled as to when your beneficiaries receive their distribution, and under what conditions. This is especially useful for younger beneficiaries or those that may have problems overspending money.  Also, by using a trust, capital gains tax can be reduced or eliminated with the stepped-up basis that is received with gifts from your trust or otherwise from your estate. Gifts received during lifetime do not have the advantage of a stepped-up basis. And, revocable trusts avoid probate and keep you estate private, unlike a will which is a public document when you probate it.

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- Recently we prepared wills for a gentleman who was hospitalized.  Because of his condition, he was unable to come to our office so we went to him and got the wills done for him and his wife at the hospital. They also wisely purchased Financial Powers of Attorney and Healthcare  Advance Directives. The Financial Power of Attorney is excellent for when a person is unable to manage their own affairs, and often guardianship can be avoided. The Healthcare Advance Directive is important to have when a person cannot communicate their own medical decisions to their healthcare providers.

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- In Georgia, two witnesses are required for probate. Can a beneficiary of a will be a witness to the will?  Georgia law has a logical approach to this situation.  Such a witness is still “competent” as a witness, and is not disqualified. So, the will can be probated, and not rejected because it has too few witnesses. However, the witness Is penalized, and his or her bequest is void. But, there is an exception to that; if there were two other subscribing witnesses, then the witness/beneficiary does not lose the bequest.

-  A Trust can be either discretionary or fixed. A trustee in a discretionary Trust has the power to decide whether to  distribute trust assets to the beneficiaries, while in a fixed, or non-discretionary trust,  the Trustee must  distribute assets according to the terms of the trust.

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-In this field we have been able to help people, one of the best things in life. See our Testimonial page and Full Success Stories page in this website. 

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-Thinking about a will? I heard some people talking about wills, and one said "we don't need a will because we are married…and I know that the surviving spouse gets everything!” That is not true in Georgia. There are many misconceptions out there. Don’t avoid talking to a lawyer-make sure you get the right information.

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-If you become incapacitated, who is going to manage your finances and help make medical decisions? 

Without planning, a person in this situation can end up in guardianship; this is expensive and time-consuming for your guardian. 

There are ways to reduce the chances of needing guardianship. With the proper documents, you can name an agent for healthcare decisions and one for finances.

You can also use a revocable trust to allow your trustee to help manage your affairs if you become incapacitated.  We can help with planning and providing the proper documents.

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- A durable power of attorney is an important part of an estate plan. A power of attorney is a legal document that allows someone to manage the affairs of another person. It must be in existence before one has lost the ability to manage their affairs. It cannot be created by a person who has become mentally incompetent. A durable power of attorney is one that stays in force when a person who created it loses the ability to manage their affairs. Traditionally, under law, the power of attorney did not stay in force when a person lost the ability to manage their affairs. The durable power of attorney does stay in force if it specifies that it is intended to be durable.

The power of attorney expires when the person who wrote it dies.  At that point, an estate must be created through the probate court, in order to wind up the deceased person's affairs.

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 -Some people are using pay-on-death accounts ( POD Accounts) to name beneficiaries for their bank accounts, and possibly to avoid having to probate a will. Some problems can arise with these accounts:

• If your beneficiary dies, does the account name an alternate beneficiary, or provide that the account becomes part of your estate of the account holder?
• Will there be enough money left in your estate to pay your final expenses, such as medical bills and funeral expenses, as well as other debts of the estate?

· If you are interested in a free will and trust checklist, please email us.

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