This is actually a question I get asked a lot, but in Georgia there’s not really a document called a “revocable living will.” Typically, when people ask me about revocable living wills, they are confusing two documents – a revocable living trust, and a living will. Although both documents have the word “living” in them, they are actually two separate things.
Revocable living trusts are documents people execute while they’re living—they title all of their assets to them, and then when they pass away their estate doesn’t have to go through probate (if done correctly). Although most of my clients in Georgia actually don’t need a revocable living trust, a few do.
A living will is a document that states your wishes about life support if you’re unable to make those decisions yourself. In Georgia, we now use a document called an Advance Directive for Health Care, which replaces living wills. (And FYI, living wills are revocable, which I guess means that there are technically documents called revocable living wills, but when clients ask about them they virtually always are getting two terms confused). I hope this clears up some confusion!
This is a question I get all the time.
Under Georgia law (O.C.G.A. § 53-2-1), if you die without a will and you have no children, the spouse is the sole heir. If you have a spouse and children, they split the estate, as long as the spouse doesn’t get less than a third of the estate. For example, if you leave a spouse and one child, they each get half. If you leave a spouse and two children, all three get one-third. If you leave a spouse and three children, the spouse gets one-third and the children split the remaining two-thirds.
If there is no spouse, the children get it all. If there is no spouse and no kids, the parents inherit everything. If no spouse, kids, or parents are around, then any siblings get it all.
This answer only applies to property that is considered to be probate property. Common examples of property that is not typically probate property are life insurance, retirement accounts and other accounts that have a beneficiary designation, and some property that is owned jointly with another person.
This is something I hear all the time. People confuse the terms living trust and living will. The only similarities between a living trust and a living will are that they both contain the word “living”, and both can be done as part of estate planning.
A living trust is a tool that is primarily used to avoid probate. In a living trust arrangement, an individual will draft a trust agreement and title all his or her assets to the trust. When that person passes away, the property owned by the trust will not have to go through the probate process. Living trusts are not as valuable in Georgia as in some other states with more complex probate laws.
A living will is a document that tells about a person’s wishes for life support. In Georgia, a document called an Advance Directive for Healthcare is commonly used to express life support wishes.
This is a question I get a lot. The issue usually arises when an elderly person starts to need help with their finances or managing their regular activities. A power of attorney can be very valuable in situations like that. A power of attorney grants another person the right to handle an individual’s financial and legal affairs.
In order to get a power of attorney from a loved one, the individual granting the power of attorney must have sufficient mental capacity to enter into a contract. The person must know what he or she is doing by signing the document and giving someone else the power to manage his or her finances.
In some situations, it’s simply too late to establish a power of attorney. The elderly individual may not have the mental capacity to do the document or may not want anyone else to handle his or her affairs. In that situation, a guardianship and/or conservatorship is needed. A guardianship allows a guardian to make decisions for an individual (called the ward) about his or her residence, health and safety. A conservatorship allows a conservator to manage an individual’s property.
If you are getting older and you are concerned that at some time in the future you won’t be able to manage your affairs, you may be concerned about who will do so. Many people have one person (often a child) who would be their first choice to take over in the event they became incapacitated.
If you have those concerns, there are a couple of actions you should take. First, you should execute two documents. One is a power of attorney, and the other is a Georgia Advance Directive for Healthcare. A power of attorney will allow your children, or whomever you name, to handle your financial affairs in the event you become incapacitated. A Georgia Advance Directive for Healthcare gives whomever you name the power to manage your healthcare decisions in the event you can no longer do so yourself. Those two documents are invaluable in the event you become incapacitated. You may also wish to discuss your wishes with your children about healthcare and finances, as well as to tell them what they need to know should that time ever arise where you can’t handle your affairs.
A lot of my clients ask my advice on whether or not they should add their child or children to their bank account to make paying bills easier. I almost never recommend doing that. If the child were to go through a divorce or bankruptcy, those assets could be seized. If the child decided to go on a gambling trip to Las Vegas, those funds could be used. When the individual passes away, those funds will go automatically to the child, and the child may choose not to share with other children. Instead, a power of attorney could be used that would give the child the same power over the account.
If you do not do any advance planning, and you become incapacitated, your loved ones could be forced to go through a court process to obtain a guardianship or a conservatorship. This process can be lengthy and expensive and may not result in what the elderly person would have wanted, so it’s a smart idea to put the necessary protections in place as soon as possible.
I often get asked about what happens to a spouse’s debts when they pass away. The answer is always “it depends”. It depends on what types of debts are involved and how assets are owned. When a person passes away, if that person has debt that is in his or her name only, the creditor can make a claim against the estate.
Normally, assets that are owned jointly go automatically to the surviving spouse and don’t pass through the estate. For example, if John and Sue jointly owned a house and that was their only asset, and John died with $5,000 in credit card debt in his name only, the credit card company is out of luck. The house passes automatically to Sue in most cases, and there are no assets against which the credit card company can make a claim.
Any assets that have a beneficiary form (like life insurance or 401k’s) pass automatically to whomever is named on the forms, and creditors can’t make a claim against those assets. For example, if Jim owed $10,000 in medical expenses when he passed away, and his only asset when he passed away was a life insurance policy of $100,000 he left to Sally, the medical provider can’t come after the life insurance. That money is protected from the claims of creditors. If he left the policy payable to his estate, the medical providers could make a claim against that money.
Any debts that are secured by an asset (like a mortgage or a car loan) don’t go away – they go with the asset to the person who inherits the property. Holders of unsecured debts, like credit cards or student loans, can go after any property left in the estate, but in many cases that isn’t much.
I get this question a lot. I also see a lot of clients with wills from the 70’s, 80’s or 90’s that are woefully out of date.
There are a few situations in which you should consider updating your estate planning documents. The first is if your personal situation has changed. Maybe you’ve gotten married or had children. Maybe one or more of your loved ones who are named in your Will have either passed away or your relationship with them has changed, and the documents no longer reflect your wishes. Maybe you did your documents when your children were very small and they are adults now. Maybe you have a great deal more or less money and property than you did when you originally did the documents. All of these would be good reasons to review the documents and consider updating them.
Another good reason to update your documents would be if you have moved out of state. It’s generally a good idea when you move from one state to another to at a minimum have your current documents reviewed, and generally they should be redone in accordance with the laws in your new state.
Another good reason to update or review your documents is if the estate tax laws have changed and you are unsure about whether you face an estate tax issue or not. A consultation with an estate planning attorney could potentially save you a lot of money that would otherwise go to Uncle Sam.
I frequently run across clients whose special needs kids have custodial accounts in their names. The parent, a grandparent, or another individual, who had great intentions, thought the money would help the child later in life. In some cases, the child may have developed the special needs after the account was set up.
Although the person who set up the account had great intentions, this is almost always a problem. When a special needs child applies for Medicaid and SSI, there are strict requirements they must meet as far as assets. Generally, they cannot have more than $2,000 in countable assets. Once a person turns 18, typically he or she legally has access to any money in a custodial account, and therefore it is considered an asset of the individual for whom the account was set up. Therefore, if the money in the account causes the individual to have over $2,000 in countable assets, the individual will lose eligibility for SSI and Medicaid until the money is spent.
A guardianship is a legal process where a person (the proposed guardian) petitions a court and asks to be appointed guardian over another person (the proposed ward). A guardianship typically occurs either when a person with special needs reaches the age of 18, or when an adult loses or begins to lose control of his or her faculties. If the guardianship is granted, the guardian can make legal decisions and health care decisions for the ward. A guardianship does not give the guardian the right to manage a ward’s money – that is done through a conservatorship, which can be a part of the guardianship proceeding. Instead, guardians can make decisions for the ward that affect the person of the ward, such as health care decisions. Once a guardian is appointed, the ward typically loses legal rights such as the right to vote, the right to marry, the right to own firearms, etc., although the court may choose to let the ward retain some of those rights.
Because the guardianship process removes so many rights from a ward, a guardianship is not something that should be entered into lightly. Instead, there should be a clear need for a guardianship. The guardianship process begins when a proposed guardian petitions the probate court located in the county in which a proposed ward resides. The probate court will appoint an attorney for the proposed ward, contact a doctor who will examine the proposed ward, notify family members of the petition, and set a date for a court hearing. At the court hearing, the attorney for the proposed guardian will present evidence before the court showing why a guardianship should be granted – typically the testimony of family members and any other concerned parties about the proposed ward’s situation. The court will also examine the doctor’s report. The attorney for the proposed ward will testify about his or her opinion on the guardianship and whether it’s in the best interests of the proposed ward. At the conclusion of the evidence, the court will either grant the guardianship or deny the guardianship.
Most people know that they need a will, but they don’t know everything that the will should contain. Although everyone is different and needs vary, commonly wills include these provisions:
- The will tells where your property should go. This is what most people think of when they think of a last will & testament – a document that states who gets your property once you’ve passed away. Although most people leave their property to family members, others leave gifts to friends, charities, or sometimes even pets.
- Burial vs. Cremation. Wills commonly state whether the testator wants to be buried or cremated, and if the body is to be buried in a specific place or ashes sprinkled in a specific place. This information is also contained in the Georgia Advance Directive for Healthcare.
- Guardians for minor children. This is one of the most important provisions in the will for parents of minor children – naming a person or a couple to raise their children for them if they are both gone.
- Trusts. Some people would prefer that their beneficiaries not get everything right away, so the property may be set aside in a trust that’s contained in the will. Although this is most commonly included in the wills of parents of minor children, trusts can be used for a variety of purposes, including to benefit special needs children or adults, to care for pets, to protect money for beneficiaries who may not be responsible with money, to provide for the education of grandchildren, to protect money for the benefit of children from a previous marriage, and more.
- Naming executors and trustees. Your will will list who you want to be your executor (the person who wraps up your affairs and follows the directions in your will once you’re gone), as well as your trustee (the person who is in charge of any money you leave to a trust).
- Waiving a bond, inventories and returns. Typically, in your will you will relieve the executor from posting a bond, and from filing inventories and returns with the court. This makes it easier for your executor to wrap up your estate.
One of the most difficult decisions for many of my clients with minor children is choosing who their guardians will be. After all, guardians will be responsible for most of the decisions of their children, if something should happen to both parents. Typically, naming a guardian is done in a will. Upon your death, the person you named in the will doesn’t actually become legal guardian until approved by a court. Therefore, your choice isn’t automatically binding. However, if no one contests your choice of guardian, the court will confirm the guardian you chose.
It’s important when you are choosing a guardian for your children that you talk it over with the person and get their complete approval – that is not something that should be a surprise. You should also name alternate guardians as well. When choosing a guardian, pick someone who would raise your children in the manner in which you wish them to be raised. You may want to choose someone who’s familiar with your extended family, as that could help them maintain close relationships with your extended family. You may have a perfect candidate in mind, but there’s one problem – they aren’t very good with money. Don’t let that stop you from naming them as guardian. You can choose someone else as trustee to manage the kids’ money.
Many people choose to name a married couple as co-guardians. That is fine, but you may wish to specify in your will what happens if they are no longer married at the time of your death. You may wish for only one of them to serve, or you may want your children raised by a different married couple instead. Make sure your wishes are spelled out in your will.