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WIlls and Trusts

People regularly ask “Do I need a will?” 
There are many issues involved in answering that question.  Most of us don't want to think about death -- either our own,  a family member or a friend.  But dying without a will means that your assets will not necessarily go to the people you want.  They will be distributed to your heirs at law, according to the Georgia laws of descent and distribution.  In some cases, the distribution under Georgia law could be substantially different than if you had a will. 

Drafting a will and making your intentions clearly known is making your intentions clearly known is one of the most important things you can do for your family.  Every adult needs to assess his/her own situation and make an informed decision about the contents of his/her will.  For most of us, the benefit of having a will far outweighs the cost of having one drafted.  For example, if you die without a will, your spouse would not necessarily get 100% of your assets.  Georgia law mandates that your assets would be divided between your spouse and your children, in percentages set out in Georgia law.  The situation becomes even more complicated if you don't have a spouse or children, or if there is a second marriage, with or without children. 

The law often fails to reflect your true desires and leaves your heirs with a complicated legal situation that could have been easily avoided.  There is simply no substitute for a well-drafted will in expediting the distribution of  your real estate, bank accounts and personal possessions.  A valid will eliminates some legal expenditures, provides for a more timely distribution of assets to the beneficiaries, and avoids fighting within the family.  A final will and testament is exactly that: final.  A well-drafted document that truly expresses the wishes of the deceased is indispensible.

Each person has different concerns which must be addressed by a lawyer drafting the will.  These concerns may include trusts for minor children, and relatives whom you do not wish to inherit, or if you wish to spread out a bequest over a number of years. Georgia law also has specific forms dealing with durable powers of attorney for health care decisions, and financial powers of attorney in case a person is incapacitated. 

Without a will, a death can result in personal and legal battles between legal heirs.  One of the more common scenarios occurs when there are grown children and a spouse from a second marriage who are all heirs to the decedent’s estate. Other times, old feuds and bad feelings between or among siblings can turn the division of assets in a parent’s estate into a nightmare that spills over into legal action.

It is better to have a will unless there are very minimal assets involved.  A bank account with less than $10,000 can be transferred by heir affidavit in Georgia, but anything more than that will require that an estate be opened. 

Assets can include:

  • Cash or brokerage accounts;
  • Real Property;
  • Personal belongings, including valuable jewelry, autos and boats, artwork, or other collections.

An estate can be opened without a will, but the process is much simpler with a will in place. Parents and children should have open communication before death becomes imminent so that children can get to understand a parent’s wishes and desires regarding distribution of their assets, the details of their burial, and many other questions.   When a person dies who previously had signed a pre or post nuptial agreement with their spouse, the family needs to understand exactly how that agreement fits into the probate process. 

Our attorneys can help you understand which assets transfer on death and which assets are involvedin probate.  Educating yourself on these matters can save your loved ones time, money and potential discord.

Ms. Rowen is a frequent lecturer on probate law to lawyers throughout Georgia.  She understand the complexities of estate and probate law and keeps up to date on ongoing legislative changes.