Estate Planning FAQs

Frequently Asked Questions

Q. Why do I need a will?

  • Your last will and testament allows you to dispose of your estate as you desire, rather than relying on the law to determine who your heirs are.
  • Without a will, your spouse and children become your heirs-even if your children are minors or under an age at which you would otherwise wish them to inherit.
  • While probating a will in Georgia is a relatively simple process in most cases, the same cannot be said of the procedures required to administer an intestate estate.
  • A will allows you to choose the person who will administer your estate as executor or become guardian of the person for your minor children. If you die intestate, any person having an interest in your estate can attempt to assume those roles, even if that person would not be your first choice. In addition, if more than one person requests appointment, it will be up to a probate court, following a hearing, to decide. This usually requires the services of a lawyer, who will be paid out of your estate.
  • If you and your spouse die without wills and you have children under the age of 18, a guardian of their property will have to be appointed by the probate court to manage their inheritances. The guardian will usually be required to post a bond and make annual, time-consuming reports to the court of all matters relating to the inheritances. With a properly-drawn will, you can create a trust to handle the estate assets for your children, designate an age other than 18 for them to receive their inheritances, name someone you have confidence in to serve as trustee, and relieve that person from posting bond and making annual reports.

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

  • No. The general rule is that a will from another state is valid in Georgia so long as it was executed in accordance with Georgia law. This means that the will has to be witnessed at the time you signed it by at least two witnesses. You should be aware, however, that other issues could make it more difficult to probate an out-of-state will in Georgia, including references in the will to the other state's laws and the possibility of having to track down out-of-state witnesses at the time the will is probated. You should have an attorney review the will to see if any potential problems exist.

Q. I own my home and some other assets as joint tenants with rights of survivorship with my spouse. Doesn't that eliminate the necessity for having a will?

  • No. Although property you own jointly with your spouse passes directly to that spouse at your death, you must plan for the day when one spouse is gone and the joint tenancy has terminated. Moreover, should you and your spouse die in a common disaster, jointly owned property then becomes part of your probate estates, requiring a properly drafted will to ensure that your children are taken care of.

Q. Wills are so expensive. Why can't I use a simple power of attorney to transfer my property at death?

  • Because powers of attorney are automatically revoked upon your death. Powers of attorney for financial and healthcare matters are essential, however, as part of your overall estate plan. They allow your agent to make decisions for you should you become incompetent or otherwise incapacitated. Without a properly drawn power of attorney, your loved ones will be required to seek court guardianship to handle your affairs, which is expensive and time-consuming.
  • Wills are not expensive when viewed over the long term. A properly drafted will can and should last you a lifetime, absent subsequent major life changes, such as marriage or divorce. When you retain an estate planning lawyer to draft your will, you are not paying for a jumble of prefabricated words on sheets of paper. Rather, you are hiring the expertise to address and solve sometimes complicated issues, which will ensure that your loved ones are properly cared for should the unthinkable strike.

Q. I've heard a lot of talk about living trusts. Shouldn't I use one of those in place of a will?

  • One of the primary reasons for utilizing a living trust in place of a will is to avoid probate. Because, however, probate is in most cases a relatively simple and inexpensive procedure in Georgia, we do not recommend that a client spend the extra money to implement a living trust, unless special circumstances are present. One situation where you might prefer a living trust is where you have remarried and have children from a previous marriage. Because the "instant probate" procedure requires the written consent of all your heirs, including those children, a living trust will help eliminate probate problems in that situation.