1.    What is estate planning?

Estate planning is the process of planning for the unthinkable (injury, incapacity, disability) and the inevitable (death).  A good estate plan ensures that your wishes are carried out regarding your health care, guardianship of yourself, if necessary, or your children, your finances, and your property.  Your estate plan may include a Last Will and Testament, a Georgia Advance Directive for Health Care, a General Durable Power of Attorney, and/or a Trust.  Your estate plan can help minimize taxes that would otherwise have to be paid upon your death, avoid the probate process, provide financial support for your heirs if necessary, and numerous other things.  An experienced estate planning lawyer at Elder Law Firm can assist you with your plan.

2.    Who needs a will in Georgia?

Between half and two-thirds of all Americans don’t have a will, but every adult needs one.  It does not matter if you don’t have many assets, or if you have millions.  It does not matter if you have children or not.   If you care who gets your personal property or real estate, then you should have a will.  If you care who gets your money if you die, and how much they get, then you should have a will.  If you have minor children and want to be able to choose who will care for them in the event that you die, then you should have a will.  It does not matter how much or how little you have.  Your will determines who gets what, and if you don’t have a will, then the court decides for you, and that could mean added time and financial expenses for your loved ones while they are mourning you.

3.    What happens if I die without a will?

If you live in Georgia and die without a will, the law determines how your assets are distributed according to your blood line.  Your wishes, however, may not coincide with what the law would determine.  For example, if you are married and have children, your estate will no go 100% directly to your spouse as you might imagine.  It will be distributed to both your spouse and your children.  In addition, as soon as your children turn 18 years old, they obtain full access to their portion, which could include the family home.  It is best for you to decide who gets what before you die so that you can save your loved ones the time and expense of having the court make the decision.

4.    How long will my Last Will and Testament be valid?

Your Last Will and Testament will remain valid until either you change it with a Codicil or you die.  However, you should review your will every two or three years with a qualified estate planning attorney to ensure that any new tax or other law changes don’t adversely affect your planning.  In addition, if you have life-changing event, such as a marriage, divorce, birth or adoption of a child, or a significant increase in your financial assets, you should have your estate planning attorney review your plan with you.

5.    Can I prepare my Last Will and Testament, or do I have to have an attorney do it?

Technically you can prepare it yourself.  However, a standardized form doesn’t work for everyone because every person, every family, and every situation is different.  If you have had more than one marriage, have children with more than one individual, own a business, want one person to receive more than others, or one person to receive nothing at all, or if you have a high net worth, then it would highly benefit you to consult with an estate planning attorney.

An attorney at Elder Law Firm with years of education, training, and experience can help ensure that your Last Will and Testament is clearly written and executed properly. 

You may think that you can save yourself a few dollars by preparing your will on your own, but it could cost you significantly more in the long run.  There is a difference between a valid will and an effective will.  An experienced attorney at Elder Law Firm will be happy to assist you with preparing an effective estate plan.

6.    What is probate?

Probate is a legal procedure that occurs after an individual who owns property in his/her name dies.  The process essentially changes ownership of the property from you to another person or others.  It begins by validating the will and providing notice to all possible heirs, and is set up to settle any disputes that may arise.

Simply put, if a person dies with a will, then property will be distributed according to the provisions in the will.  If there is no will, then the estate is said to be intestate.  In that case, the court divides any property according to the law.  A final accounting will be completed at the end of the process.

Often, probate becomes time-consuming and cumbersome, so most executors or personal representatives hire an attorney to assist with at least some of their duties.  Having a Last Will and Testament does not prevent the need for probate upon your death, but a carefully drafted will by a skilled lawyer can minimizes the time your executor or personal representative must spend in court and may speed up the distribution of property to your heirs.

7.    Do I need a new will if I am moving to Georgia from another state?

You do not have to have a new will if you move to Georgia from another state, as long as your will is executed in accordance with the laws of Georgia.  Georgia law stipulates that two individuals must sign as a witness to your signature as you sign it.  In addition, your will from another state may reference that state’s laws, so that could be a problem in Georgia.  It would be a good idea to have an estate planning attorney review your documents to see if your will is acceptable as written, or if you may need a codicil or new draft prepared.

8.    If I own life insurance, will the beneficiaries in my will get the insurance money when I die?

No, your beneficiaries in your will are not going to automatically receive any life insurance that you own.  Life insurance and retirement accounts are not assets that pass through probate, so this money goes directly to the person or persons that you name as the beneficiary with the insurance or retirement companies.  It is probably a good idea for you to review your beneficiaries of life insurance and retirement accounts every two or three years when you review your will and other estate planning documents with your attorney.

9.    If I am planning to get divorced, do I need to change my estate planning documents?

You absolutely will want to review your estate planning documents with your lawyer to determine whether any changes will be necessary.  If you named your soon-to-be ex-spouse in your will as the executor or a beneficiary, or if you named him/her as your power of attorney, you most likely will need some changes right away.  Should something happen to you, you probably wouldn’t want your soon-to-be ex-spouse to decide what, if any pain medication or health care you could receive.

10.    Can a lawyer help me protect assets and income and still be eligible for Medicaid?

In many cases, your assets and income can be protected so that you can still qualify for Medicaid.  You will need to consult with an attorney to discuss your individual situation while ensuring that all applicable laws are followed.