Estate Planning – FAQ

Who needs a Last Will and Testament (will)?

Every adult, whether single or married, will need a Last Will and Testament (will) whether you have money and belongings or not. A will is how you ensure that your wishes are respected when you die and that everything you own will be transferred to the people or charities that you love and respect as quickly as possible. If you die without a will, state laws will dictate how your estate is transferred. You might not agree with the legal plan of succession. With a will, you can decide the way you and everything you own is treated AND give your family or friends a legacy.

Does all property have to go through probate?

Some property can avoid the probate process. Property or other assets held in trusts may be exempt. Your estate planning attorney can provide you with advice for your individual situation, and what type of trust (revocable trust or irrevocable trust) might work for you.

Can I prepare my estate planning documents myself (will, trust, power of attorney forms)?

Sure, you can prepare your estate planning documents, such as your will, a trust, or power of attorney documents. You can download forms from the Internet or buy books at your local bookstore. Some of them are valid and would be recognized by law. However, some that we see advertized say something like – recognized in all 50 states. The problem is that each state has different laws when it comes to estate planning issues. People also frequently make mistakes when signing the forms, or mistakenly leave out important information. The forms don’t typically tell you how to sign them properly so that your wishes can be followed when you die.

There is a difference between a valid document and an effective document. In addition to being valid, it needs to be designed to get whatever needs to be accomplished in your situation completed in as efficient manner as possible. Your attorney can assure that your documents are valid and your wishes will be followed.

My child is married and I do not trust his/her spouse. How do I keep my child’s inheritance out of their spouse’s grasp?

Legally speaking, inheritances are the property of the person inheriting, and the spouse has no legal right to the property. However, what your child does after he/she receives the inheritance can change what was once separate property into marital property. For example, if the inheriting child places the assets into a joint bank account, those assets may not be separate property anymore. In this scenario, the best approach would be to make sure he/she does not commingle the inheritance with joint assets of the spouse. On the other hand, certain types of trusts can help to preserve inherited assets as separate property.

How does divorce affect my estate planning (Last Will and Testament, Power of Attorney documents, Trusts)?

Divorce affects many areas of estate planning. Your will does not get revoked just because you are getting divorced. Unless your divorce agreement and will provides otherwise, your soon to be ex-spouse may inherit some or all of your assets, to the detriment of your children, parents or siblings, depending on the details of your prior will. You should change your will as soon as you determine that your marriage is over, whether you have actually filed for divorce or not.

If you are obtaining a divorce, you will also want to re-do your powers of attorney. The General Power of Attorney document gives someone you appoint the ability to access your finances and assets, in case you are unable to do so yourself. The person you designate will be able to do everything you could do for yourself, if the power of attorney is properly drafted, such as check writing, collecting rent, repairing your home, selling your house or car, or trading stocks or other investments. During an extended period of disability, the last thing you would want is for your soon to be ex-spouse to be managing your financial affairs.

You will also want to re-do your Georgia Advance Directive for Health Care (or Health Care Power of Attorney). This document empowers someone of your choosing to make any decisions about your health care which you are unable to make yourself, such as what kind of treatment, whether to have surgery or not, and how much pain medicine you should receive. These are not decisions that should be made by your soon to be ex-spouse! The Georgia Advance Directive for Health Care is a relatively simple document that can easily be prepared by your attorney.