Estate planning is about the business of life and death. It is a serious subject that is, for most people, hard to discuss. As a result of this difficulty, we often ignore the matters involved until it is too late.

My task as an attorney is to advise you on the proper way to discuss life and death matters; this discussion should be calm and methodical and plan for future contingencies to the best of our abilities.

The starting point for you should be determination of what assets you own or control. The next step involves to whom and how you wish to give those assets at your death. Third, the most economical transfer method for those assets should be explored. Lastly, control of the assets in cause you are incapacitated should be examined and planned.

• Do you have a Georgia Will, Financial Power of Attorney, and an Advance Directive for Health Care?  These three documents are considered the basics of every estate plan.

• Have you moved into the State of Georgia since you last signed your estate planning documents? 

Should you die without a will, your state legislature has codified your property distribution for you. Intestate succession may or may not be what you desire, but that is what you will get. If you want to save a few bucks, let the government take care of the administration of your estate. But, to encourage you to think about a will, the following five steps will help you start.

INVENTORY YOUR ESTATE: Organize your assets and liabilities into a file (if you do not have a form, contact me and I will e-mail one to you for free). Include all real property, tangible and intangible personal property, contracts, insurance, pension plans, bank accounts and cash. This will give you an idea of the size of your estate and allow you to make informed decisions about the distribution of your property.

In 2007, the Georgia legislature passed the Advance Directive for Health Care Act. The Act provides for an advance directive for health care (ADHC), which combines provisions of a living will and a durable power of attorney for health. The legislature took this action in order to simplify the language of the original documents, make the ADHC easier to complete, and make it uniform with other States.

A durable financial power of attorney is an essential estate planning document for yourself and your family. A financial power of attorney is a document that creates an agency relationship between you (the "principal") and someone you designate (your "agent") to manage your financial interests. The State of Georgia has its own laws governing this power as do all of the other 49 states.

If you are not able to make decisions for yourself and you haven't prepared a durable power of attorney, a court might have to make important financial decisions for you. Your spouse, companion or family members will have to ask a court for authority over at least some of your financial affairs. This process can be timely and expensive and results in the appointment of a guardian or conservator. The process is normally public and can be humiliating.

In everyone's life, there is a chance that you may be seriously injured without the ability to make decisions regarding your health care. If this should happen, it would be helpful to have someone who knows your values and in whom you have trust to make such decisions for you. This power exists with a legal document called a Power of Attorney for Health Care ("DPAHC")

Your estate plan, which should at the minimum contain a will, living will and powers of attorney, should be reviewed annually. If any changes need to be made, contact an attorney to insure proper procedures are followed. Not executing the documents correctly can have adverse and fatal consequences that might not be salvageable after your incapacitation or death.

The following personal or financial changes should prompt a call to your lawyer's office:

• Change in marital status (you or your beneficiaries divorce or marriage)
• Birth or adoption of a child
• Change as to beneficiaries (death, incapacity or change in relationship)
• Change in fiduciary (Executor, Trustee or Guardian)
• Change in wealth or addition/lapse of life insurance
• Purchase or sale of a business
• Changes in specific or charitable gifts

A Living Will is an advance directive that allows you to express "end-of-life" decisions. It is very different from a Last Will and Testament and should not be confused with a Living Trust. A Last Will and Testament is a legal document that expresses how your titled property is distributed to beneficiaries after your death. A Living Trust is a trust established during your life to hold and manage property for you. A Living Will has nothing to do with money or possessions, but establishes in writing how you wish to be treated when dying.

What Does a Will Do?

 

A Will is a legal document that is effective only at your death. It names individuals that will receive your property, nominates executors, trustees, and guardians to provide for your estate upon your death, and can provide for tax planning and trusts. Generally, probate of the Will occurs in the county where you reside at your death. Failure to follow proper legal procedure in drafting and executing a Will voids the document.

 

Can I pass my entire estate to others by a Will?

 

A Will can pass only assets and property in your name at your death. Retirement plans, life insurance, jointly owned property (joint tenancy and joint property with right of survivorship), and POD accounts are some examples of assets that pass outside of the probate process.

 

What Is Probate?

 

This material should not be considered as legal advice or opinion on specific facts or circumstances, and is intended for general informational purposes only; a competent attorney should be consulted concerning any particular situation and legal advice relative to the issues discussed.

What is Estate Planning?

Estate planning is a process. It involves people - your family, other individuals, and in many cases charitable organizations of your choice. It also involves your assets and all the various forms of ownership and title that those assets may take.

As you plan your estate, you will consider: