FAQs

A will is an instrument by which you declare who is to receive your real and personal property after your death. In Georgia, a will must be in writing and signed by you, the testator, and attested by two witnesses. You may also name a guardian for your minor children in your will, set up a trust for your children within your will, name a trustee to administer the trust for your children, and select an executor to settle your estate.

If you die without a will in Georgia, your assets may not be distributed according to your wishes. For instance, if you are married with children, your assets will be distributed to your spouse AND your children, not just your spouse. Further, your children would have full access to their portion of the property once they are 18 years old. Additionally, if you are unmarried without children, your estate is distributed to your parents, if living, and if not, to your siblings and their descendants. The formula then continues to more remote relatives along your blood line.

In addition to designating whom receives your assets after your death, you may also name a guardian for your minor children in your will, set up a trust for your children within your will, name a trustee to administer the trust for your children, and select an executor to settle your estate. If you have a taxable estate, you may be able to avoid or minimize the estate tax by having a proper, well-planned will. Having a will saves your family time and money. The probate process is more difficult, time-consuming, and expensive if you die without a will.

Under current laws, if you die and your net worth is greater than $13.61 million (or a combined $27.22 million with your spouse if you are married)(the current exemption, adjusted each year for inflation), your estate is subject to estate tax. (The net worth of your estate is calculated as your assets, including real and personal property, financial assets, retirement plan values and life insurance payable upon your death and the fair market value of your business, minus liabilities.) To make matters worse, the estate tax rate is as high as around 40%.

There is an unlimited marital deduction for transfers of wealth between spouses, so if you leave everything in your will to your spouse, your estate will not owe an estate tax. However, the marital deduction only defers the tax; upon the surviving spouse’s death, the estate is subject to the estate tax.

You may be able to avoid or minimize the estate tax by properly planning. There are many saving techniques which may be utilized in your will and other estate planning documents.

The person designated in your will to carry out the directions in your will is your executor. The executor will submit your will to probate, oversee the payment of debts and taxes of your estate, and distribute your estate as specified in your will.

A Trustee is a person holding legal title to property “in trust” for the benefit of the beneficiary of the trust who must carry out the duties specified in the trust document with respect to the property in the trust; i.e., the person you designate in your will or trust document to hold and administer property for your beneficiaries.

Generally, a trust is a legal entity created by a grantor (a transferor of property) whereby the grantor transfers certain property to a trustee to administer for the benefit of designated beneficiaries. It is an arrangement whereby a person transfers property with the intention that it be managed by a trustee for another person’s benefit.

There are many types of trusts, but the ones you hear about most often are living trusts and testamentary trusts. A living trust is created to be administered during your lifetime, and a testamentary trust is created under the terms of your will to be administered after your death. People will create trusts in their wills to be administered for their spouse and/or children after their death, so that the spouse and/or children do not have full unfettered access to the money, and/or to avoid estate tax as much as possible. Oftentimes, people create living trusts to avoid probate.

Generally, the answer is no. Oftentimes, the general perception among people that trusts are absolutely necessary to avoid probate are flawed. Probate is a stream-lined and inexpensive prospect in Georgia if you have a valid will and there are no major conflicts within your family. Further, depending on the type of trust, you may not be shielded from estate taxes and creditors.

However, you may need a trust if your assets must absolutely be kept private, you seek to avoid family conflicts after your death, you desire to transfer some of your property to avoid estate taxes, you have real estate in another state and wish to avoid ancillary probate in that state (which can be very expensive and difficult), or you wish to utilize a trust to hold life insurance, which can be a significant part of your estate, to avoid estate taxes. A trust can also provide for the management of your property in the event you are incapacitated in a much more detailed fashion than through a Revocable Financial Power of Attorney.

There are many types of trusts, and each type of trust has advantages and disadvantages. You should rely on the advice of an attorney before deciding whether or not to form a trust.

A living will is a document whereby you state whether and what life-sustaining procedures are to be withheld or withdrawn under certain circumstances. It allows you to make end of life decisions in the event you cannot make those decisions at the time of care. Without it, your family will need to make these decisions for you. This document allows you to die a natural death, if that is your wish, and avoids devastating medical bills. This document has been replaced with the Georgia Advance Directive for Health Care, pursuant to Georgia Law, effective July 1, 2007.

This is a document whereby you name an agent to make medical decisions for you when you are incompetent to make such decisions. This form allows you to choose a trusted individual to make critical decisions for you and avoids conflict among your family about who should make the decision and it avoids having to have a guardian of the person appointed by the probate court to make medical decisions for you. Your agent may only make said decisions for you if it is determined by a licensed physician that you lack sufficient understanding/capacity to make significant decisions regarding your medical treatment. This document has been replaced with the Georgia Advance Directive for Health Care, pursuant to Georgia Law, effective July 1, 2007.

This document, effective July 1, 2007, “combines” the Living Will and Durable Power of Attorney for Health Care forms. It allows you to appoint someone to make medical decisions for you when you are unable to make those decisions for yourself; you may also state your personal care and medical treatment preferences, including accepting or declining certain types of treatment and the withdrawal or continuation of life support in certain circumstances. This form allows you to choose a trusted individual to make critical decisions for you, thereby avoiding conflict among your family about who should make your medical decisions. It also avoids the necessity of having a guardian appointed by the probate court to make medical decisions for you.

This document allows you to appoint someone to act on your behalf to handle your assets when you cannot. If you become mentally or physically disabled, your agent would be able to access your bank accounts, retirement benefits, autos, home, etc. in order to handle your financial affairs. If you do not sign a Revocable Financial Power of Attorney and you do become incapacitated, the probate court would need to appoint a conservator of your property which can be burdensome and expensive. It can also be used if you are out of town for a long period of time or in emergency situations. This document may be revoked at any time. One word of caution is in order. A Revocable Financial Power of Attorney is subject to abuse. Accordingly, you must have the utmost confidence in the person named in your Revocable Financial Power of Attorney.

Our goal is to provide an efficient, economical, and quality legal service to you. Therefore, our system is designed to save you time throughout the will preparation process. We have a short preliminary questionnaire that is easy to complete. After you send us a completed questionnaire, we will provide to you a free preliminary estate analysis based upon your family profile and taxability profile, and will send you more detailed questions to answer, if necessary. Because one primary focus of our business is drafting wills, our legal fees are economical, and we can charge a flat fee to prepare wills, Georgia Advance Directives for Health Care and Revocable Financial Powers of Attorney for you and your spouse (if applicable). We can answer most basic questions at no extra charge. For clients who require more involved legal or tax advice, we will provide additional services at a fair price. We will, at your request, work closely with your personal tax advisors or financial planners in order to realize your goals.