Family law attorneys Ashley Baker Osby and Marlys Bergstrom head up the Wills and Probate division of our firm. You can feel a sense of relief knowing they are working hard to protect your estate and children. Each state has different outcomes if you die without a Will. However, a valid Will determines who will get your property and who will care for your children after your death. Through years of mentoring, Ashley and Marlys understand how to advise your representatives and beneficiaries of your estate and settle the final affairs of a deceased person. Ashley is a former Associate Probate Court Judge here in Georgia.
If you are interested or know of someone who would benefit from our counsel, please contact the office of Stearns-Montgomery & Proctor to schedule a consultation.
Purpose of Estate Planning
Wills
Definition of a Will
In the simplest terms, wills are legal documents that detail out your wishes pertaining to the distribution and transfer of your estate and the upbringing and care of your minor children (if any).
It is sometimes also called the “last will and testament,” because a county court reads it after your death and ensures the due execution of all your final wishes.
In order to make the will enforceable by law, it must be:
- Presented in writing
- Should bear your and the witness’ signatures
- Passed through the probate process of the State.
Purpose & Benefits of Wills
Purpose/Use of Wills
A will is designed to fulfill the following purposes:
- Make property dispositions that will take effect after your death.
- Appoint the people/causes/pets who will get a share of your estate
- Assign people you wish to handle your estate or a part of it
- Choose guardians who will be responsible for your minor children following your death
- Altering or revoking a previous will
Benefits of Wills
There are plenty of benefits of having a will. The most prominent ones include:
- They allow you to pick your own will executors. These are the people that will see the fulfillment of your intended purpose of the will—including the distribution and management of the estate.
- With the will, you can choose who would take care of your minor children (appointing guardians) after your death.
- It allows you to detail out the arrangements for your funeral, the expenses for which can be paid out from your estate.
- You can benefit from the reduced amount of inheritance tax payable as your solicitor will advise you on the best way forward for it.
Legal Requirements for a Valid Will
Making a will in Georgia is an important legal aspect of your life that can bring important consequences for your loved ones, once you die. You can draw up a will as simply as writing down the way you want your estate to be distributed after your death—but will that make the will legally valid?
Almost all states have similar requirements when it comes to deciding the validity of wills. In Georgia, your will is generally considered to be legally valid if it adheres to the following requirements.
Note: it is important to know that different states may have additional requirements that must be met in order to make the will legally enforceable. Do check your local laws for better understanding.
The testator should be or above the legal age in their jurisdiction. In most states, you’re considered to be of legal capacity if you are aged 18 or above, are lawfully married, or belong to the U.S. military.
The testator should be in ‘testamentary capacity’. In most case the term is used to reinstate that the testator has a sound mind. Which means they are aware of the will and its impact and have a clear understanding of their estate and the manner in which it will be transferred after their death.
A person, at the time of signing the will should have the testamentary intent for the particular legal document to serve as their last will.
The testator must have entered into the will voluntarily and signed it without any internal or external coercion. Any signs of coercion or duress at the time of signing will make the will invalid.
A will should have all the details necessary for the appropriate disposal of the estate holder's property.
Whether it is a page or several pages long, the will should be dated and signed by the testator in the presence of two witnesses who do not have any personal interests in the will. The witnesses should also sign the will.
Effect of Birth or Adoption on a Will
The birth of a new child does not necessarily imply that you need to change your will. Whether you include them in the will or not, the child does stand to inherit part of your estate.
Where the child is not included in the will, they will inherit your estate according to the intestate laws in Georgia. The remaining estate will then be distributed according to your will. This is a gross oversimplification. They would have to file documents in court to set aside the will and/or receive support before assets are distributed pursuant to the terms of the original will. Most will are written in general terms to avoid this (Assets A, B, C to my then-living children in equal shares).
When you adopt a child in Georgia, the law treats them as your natural child. An adopted child has the following inheritance rights (unless the Will provides otherwise):
- To inherit part of the adoptive parent(s)’ estate according to the intestacy laws in the event the parties die without a Will. The adopted child has this right only in connection to the adoptive parents – not with the birth parents.
- The same rule applies where the adoptive child is not included in the will (by mistake) or the parent did not have ample time to update their will following the adoption. Intestacy laws only apply where there is no will. If there is a will then you can move to have it set aside but you have to challenge the will before the Georgia intestacy statutes apply. The intestacy laws decide how much property does the adopted child stand to inherit (just like the natural child).
- The adoptive child is also rightfully included in all references made to “all my children” by the testator in his will. A majority of times documents for estate planning use a collective reference to the children of the testator. Since the law creates a parent-child relationship between adoptive parents and the adopted child – it gives the adopted child inheritance rights equal to a natural child.
The effect of birth or adoption on a will may differ from one state to another as intestacy and probate laws vary from one state to another.
Effects of Marriage and Divorce on Wills
The Effect of Marriage on a Will
If you get married or divorced after you’ve already made a will, a new will is needed in Georgia. However, since the law allows for a spouse to be entitled to at least one year’s support from the deceased’s state, your husband or wife could only receive a small percentage should a will not be redone at the time of marriage. The estate that remains will then be distributed among the other beneficiaries as per your will. In case you make a will before getting married and include the contemplation of marriage provision; it will help you avoid the statutory 1/3 minimum share of spouse in your estate. You can then distribute the property as you desire, making sure to include your spouse in the beneficiaries.
The Effect of Divorce on a Will
Divorce invalidates the will as if the spouse is no longer living or predeceased you.
Trusts
Trusts are a form of arrangement that allow the estate holder to appoint trustee(s) for the distribution of the estate to the beneficiaries pursuant to the terms set forth in the trust. The beneficiary in this case could be family, friend(s), charity, or even a pet.
The Rights of a Beneficiary
A beneficiary is the person(s) who is entitled to all or a portion the benefits that accompany a trust arrangement. A trust beneficiary is legally entitled to a set of rights that normally include:
- The beneficiary is entitled to timely receive all or a portion of the benefits of the trust. The period of time over which these benefits will be distributed depends on the complexity and the formulation of the estate and the terms of the trust.
- The right to information pertaining to the original assets and their respective inventories that form part of the estate.
- They have the right to request the administrator of estate to complete and disclose the estate’s accounting and bookkeeping.
- The beneficiary has the right to request the court for the removal of the trustee; however, the Court ultimately is tasked with determining whether or not the Trustee should remain.
- The beneficiaries have the right to review, and raise any objections to the compensation of the executor. In case the beneficiary is not satisfied with the level of compensation the court should set it for them.
The Duties of a Trustee
A trustee is the person entrusted with the fiduciary duty and responsibility of administering and disbursing the assets of the trustmakers (settlors) to the beneficiaries of the trust. The main responsibilities of a trustee include:
- Tasked with managing the trust assets and preventing them from being co-mingled with other property in the Estate or other property of the Trustee.
- Avoiding conflicts of interest (they should avoid any and all conflicts of interests, not just between them and the beneficiaries
- Carefully adhere to the terms of the trust when disbursing the incomes and assets to the beneficiaries
- A trustee shouldn’t delegate any of their responsibilities as a trustee to another person, except and unless expressly permitted pursuant to the terms of the trust. However, for efficient administering of the trust, the trustee can hire attorneys and accountants for counsel.
- The trustee has the responsibility to disclose all the relevant information of the trust to the beneficiaries, including a complete disclosure of assets and property.
Probate Definition & Process
Probate is a legal process whereby certain debts of the deceased person are settled and their property’s (property only in the name of the decedent and not otherwise) legal title is transferred and/or distributed by the law to their beneficiaries and heirs.
In the event where the deceased has left a will, and they have left behind property that qualifies for probate, the process starts when the estate’s executor (as appointed by the will), presents the last will of the decedent for probate in the probate court of the decedent’s resident county.
In case the deceased left no last will, someone from the deceased’s family must reach out to the court and request them to appoint an administrator for the deceased's estate. Often, this administrator is the deceased’s surviving spouse or the adult child. Once the court appoints an administrator, they are legally authorized to administer the said estate.
In simple terms, probate is a process supervised by a probate court that deals with the distribution or transfer of the assets and properties of a deceased person after his death and is filed in the County in which the decedent was residing at the time of death.
Probate Process
Considerations and Matters Involved When There Is a Will
Where the deceased leaves a will, the probate process usually involves establishing the validity of the will, appointment of an executor, and rightful distribution of the estate. Here’s how the process goes:
- A petition needs to be filed in the decedent’s resident county court.
- Submitting the original will and supporting evidence for proving the finality and validity of the will.
- Once the validity is established, the court issues a letter of testamentary to the “executor”. The executor could be someone appointed by the will itself or by the court in case the will doesn’t appoint one.
- The Executor will be required to take an oath before commencing his or her duties in probating the estate.
- The executor is then under the fiduciary duty to execute the will. This may include notifying creditors, paying off debts and taxes, and administering the estate as per the deceased’s wishes.
Considerations and Matters Involved When There Is No Will
Where a person dies without a will, the probate process is handled in accordance with the laws of intestacy. In this scenario, the court takes the responsibility of appointing an administrator for the deceased’s estate who takes charge of the duties that are otherwise performed by the executor when the deceased actually leaves a will.
- A petition needs to be filed in the decedent’s resident County Probate Court.
- Where the decedent is not a resident of Georgia, the petition needs to be filed in the State where most of the deceased’s estate is located.
- The court may assign anyone with a sound mind as the administrator of the deceased’s estate. However, preference is given to the surviving spouse or next of kin.
Applying to the Probate Court
Probate is the legal process that deals with the administration of a deceased person’s estate. Since the process takes place after the death of a person, the process is usually seen through by their heirs/spouses/trustees. The process generally includes:
- Proving the validity of the will (if any) left behind by the deceased person. This matter is a routine procedure.
- Identifying and listing all the property in the name of the deceased person.
- Getting the property duly appraised
- Paying off the debts and taxes owed by the deceased
- Distributing the property that remains according to the will (if any). In case there is no will, the state laws direct the course of property distribution.
Normally, the probate process involves making appearances at the probate court and a lot of paperwork by the probate lawyers. The process begins by filing an application in the probate court and requesting the court to appoint you as the official executor of will.
Property Controlled By a Will: Probate & Non-Probate Estate Assets
What Are Probate Estate Assets?
According to probate estate laws in Georgia, the probate estate is part of the testator’s property that can be governed and distributed through their last will & testament. Normally, these probate assets/properties include:
- Real estate
- Financial accounts
- Personal property
What Are Non-Probate Assets?
Contrary to the probate estate, the non-probate estate is not governed by the last will of the testator. This class of assets and properties passes to the designated beneficiary, joint owner, or the remainderman by operation of the law. The most common types of non-probate assets consist of but aren’t limited to:
- Assets such as stocks, joint bank accounts, and real estate jointly owned with survivorship rights for all remaining owners.
- The retirements accounts that are payable to designated beneficiaries only
- Policies for life insurance payable to designated beneficiaries only
- Property in which the testator holds a life estate
- Property held in trust created during the testator’s lifetime.
Contact a Qualified Georgia Probate Attorney Near You
Since probate laws differ from state to state, you should hire a probate lawyer to get a clearer picture of the applicable law in the state in which you reside.
The Executor’s Responsibilities
Once appointed as executor, the person has the legal power required to:
- Distribute the decedent’s property to the beneficiaries as per their will.
- Pay the debts and taxes owed by the estate before transferring it to the heirs.
- Hire experts like lawyers, tax accountants, and real estate agents for efficient administration of the estate.
Administer the estate, which will include:
- Signing transfer of title of assets
- Authorizing real estate deeds
- And closing down bank accounts.
The Executor's Duties
The executor under legal duty to ensure:
The Surviving Spouse
In Georgia, your intestate estate is inherited in full by your surviving spouse in the event you have no living children and/or grandchildren at the time you die. When you have a surviving spouse and children, the estate is equally distributed among them. According to the Georgia laws, the surviving spouse will always get at least one-third of deceased’s estate. This law stands with no regard to the number of children that survive the deceased. If there are no surviving children, but you do have grandchildren, they will get the share that was supposed to go to their parents.
No Children or Spouse
For Georgia residents who die without leaving a surviving spouse or children, or sometimes even grandchildren, the intestate succession laws of the state entail that their estate be equally distributed to their surviving parents. If the deceased doesn’t even have living parents, the siblings come next in line for inheritance wills, followed by others in the following order: nieces and nephews, grandparents, aunts, uncles, cousins.
Heirs
When a resident of Georgia with no intestate heirs dies, their estate is automatically transferred to their respective county’s board of education. The estate is transferred once the personal representative of the estate files an application in the probate court that authenticates the fact that no heirs were found following the four years after opening of the estate. Georgia law does however allow an additional 60 days in case there are any unknown heirs who want to object the transfer of state to the board of education.
Applicable State and Local Law Considerations
Different states have different probate laws. These laws govern the various aspects of probate including planning and administration of the estate, the wills, the descent and distribution, as well as the probate process.
Around 20 states in the United States follow the Uniform Probate Code. However, states like Georgia still choose to follow their own set of probate laws. According to the laws in Georgia, there will be no need for full probate if all of the following conditions are met:
Since the probate process in almost all states is cumbersome and costly, most people seek to avoid getting into the formalities of the system. The state of Georgia allows you the following options for avoiding probate:
The transfer-on-death option is not available for real estate and vehicles in Georgia. Of course, other states may have different laws regulating probate and a majority of these laws can be particularly complex. It is always better to consult an estate or probate attorney based in your state for proper legal advice.
