Where There's A Will There's A Way

07/06/2011

 

Where There's A Will There's A Way

by Glenn M. Wall, Attorney at Law


John and Mary Smith, homeowners with two small children, a checking account, some stocks and bonds, a little life insurance, and no wills, die simultaneously in an automobile accident. Their distraught families, who have no idea of what they are getting into, hire lawyers to petition the appropriate probate court for letters of administration (in order to administer John and Mary's separate estates) and guardianship of the kids.

Acrimony ensues between the families on the guardianship issue, each insisting that they are best qualified. After months of legal delays, the probate judge appoints John and Mary's fathers as administrators of their respective estates, and appoints Mary's parents as guardians of the children. No one is really happy, except maybe the lawyers, who have already made more in fees than they would if they had both prepared and probated John and Mary's wills. But wait--there's more to come.

Unlike executors under a will, who are normally relieved from this obligation, the fathers may be required by the probate court to post bonds for the faithful performance of their duties as administrators. The respective estates, of course, must pay for these bonds, as they have paid for all of the other costs and fees previously incurred. In addition, the fathers, again unlike executors, may be saddled with the duty to file an inventory of the estates and annual returns of all actions taken with regard to them.

Since the kids are living with Mary's parents, there is no need to keep John and Mary's house, so their fathers, as administrators of their estates, contract to sell it to another young couple. The fathers (again unlike executors under a will) may be required to petition the probate court for permission to sell the house, disclosing all of the reasons for selling it, as well as the price and terms of the sale. In addition, notice of the proposed sale must be published in the county newspaper once a week for four weeks and the probate judge must appoint a special guardian for the children with respect to the petition to sell. More expense, delay, and bother. Finally, if the prospective purchasers haven't walked away in disgust at the delay, permission is granted and the house is sold.

After closing, the proceeds from the sale of the house, as well as what's left of the money in John and Mary's checking account, their stocks and bonds, and life insurance proceeds are transferred out of their respective estates to custodial bank accounts for the children, who will be able to get their itchy little fingers on these assets as soon as they reach the age of--EIGHTEEN?

John and Mary, ensconced behind the pearly gates, are furious with themselves. They wanted John's sister to be the children's guardian and Mary's brother to handle the assets of the estate for the kids in a trust that wouldn't terminate until they reached age 25, when the temptations of youth and immaturity have subsided. They remember the attorney that closed the purchase of their house, the one who offered to prepare their wills for a fee less than the cost of any one of the probate court filings related above. He told them how with a will they could ensure that their wishes would be carried out: how they could name their own guardians for their minor children rather than let the probate court decide, and how they could relieve the guardians from having to file unnecessary and expensive bonds with the probate court. He advised how they could also set up a minor's trust in their wills, appointing a responsible person to handle the kid's inheritance until they reached a proper age of John and Mary's choosing, again without the costly and time-consuming intervention of the probate court. And, finally, how they could appoint an executor for their estates, who would be relieved from the burden and expense of filing bonds and annual returns, and who would otherwise be free from having to clear every transaction in their estates with the probate court.

John and Mary's horror story is played out all too often across Georgia, and is all the more tragic because it is totally unnecessary. Please get your affairs in order with a properly drafted will.

Glenn M. Wall is an attorney in Suwanee, Georgia. He has helped clients with planning estates, drafting wills, and creating powers of attorney since 1985.