Many of my clients have parents whose health is starting to falter. They may be unable to make decisions for themselves about their health, safety, or finances. However, in some cases the parents are reluctant to give up any control over their assets and don’t want anyone else to be able to make decisions for them.
I usually recommend that if possible, elderly individuals execute a power of attorney and a Georgia Advance Directive for Healthcare (in addition to a Will). A power of attorney and a healthcare directive will allow a named individual to make decisions about finances and health care in the event the elderly person is unable to do so.
In some cases, the elderly person no longer has the capacity to make good decisions about his or her finances, health, safety or welfare. In other cases, the elderly person might be being taken advantage of by a family member or friend, and doesn’t want anyone else to make decisions for him or her. In those cases, a guardianship or a conservatorship may become necessary.
A guardianship is a legal process in which a person asks the probate court to give him or her control over an adult’s health, safety and welfare. A conservatorship is similar but gives control over finances. Guardianships and conservatorships are often expensive and time-consuming, but in many cases are necessary to protect an individual from either being taken advantage of or from making poor decisions.
If you believe your mother or father or another loved one is in need of a guardianship/conservatorship, call Sarah White, Cobb County guardianship attorney, at 678-453-6490. She will help you walk through the process and will also help determine if any alternatives exist.
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.
Debts and estate planning can be confusing. If you have any questions about debts and an estate, call me, Sarah White, north Georgia estate planning attorney, at 678-453-6490 or email me at Sarah@lawyersarah.com. I will be happy to provide you with a free consultation.
If you have life insurance, you’ve probably purchased it with the idea that it will go to support your family after you pass away, not to pay your debts. I have some good news for you – in most cases, the life insurance will pass to your family members and will not be subject to the claims of creditors.
Typically, if you make life insurance proceeds payable to your spouse or your children, that money passes outside of your estate directly to your spouse or your children. Since it doesn’t become a part of your estate, it doesn’t become subject to the claims of creditors. Although many of my clients are debt free and aren’t worried about creditors, it’s possible that some creditors could surface after your death. For instance, if you died in a car wreck that was your fault and injured others, the other injured parties could make a claim against your estate, and any assets in your estate would be subject to the claims of creditors.
For those reasons, I usually recommend that my clients make their life insurance proceeds payable directly to an individual, or a trust for the benefit of their children. If they do that, the money will pass directly to their loved ones. It’s always a good idea to keep those beneficiary forms up to date, so I recommend that my clients update those forms as a part of the estate planning process.
Do you have any questions about life insurance proceeds and debts in Georgia? Call Sarah White, Marietta wills attorney, at 678-453-6490. I’ll be happy to provide you with a free phone consultation.
This is a question I get a lot. Many, many clients express to me that they were motivated to get their Wills done because they were afraid if they passed away without a Will “the state would get their money”.
However, that’s not really what happens. There are a couple of issues at play: (1) Who gets your money if you pass away without a Will in Georgia; and (2) if the state will get your money.
To answer the first issue, if you pass away without a Will in Georgia, where your probate estate passes is determined by Georgia law. Georgia law says that if you die without a Will, your probate estate will be shared among your spouse and children, and if none, then it passes to your parents, and if they aren’t living it will pass to your siblings. Your probate estate includes any property you own in your individual name (and not joint with right of survivorship) and any accounts that do not have a beneficiary form or accounts on which your estate is named as beneficiary. Assets that are owned jointly or have beneficiary forms pass outside the Will. This distribution of assets may sound reasonable, but most married couples wish for their spouse to get everything, and for the assets to pass to the kids upon the spouse’s death.
To answer the second question, no, in most cases the state will not get your money. A couple of cases in which the state could end up with your money is if you owed estate taxes, or if you had no living relatives. If you had a very large estate ($5.25 million if you passed away in 2013), anything over amount that would be taxed and could end up in the hands of the federal and/or state government. You could possibly avoid that by doing some tax planning in your Will. If you died without a Will and had NO living relatives (meaning no parents, siblings, spouse, children, aunts, uncles, cousins, nieces or nephews, etc.) your estate could pass to the state (it’s called “escheating” to the state). That would be an unusual situation, but it happens. You could avoid that by doing a Will and naming friends or charities to inherit your property.
If you want to learn more about Wills in Georgia, call Sarah White, Marietta estate planning attorney, at 678-453-6490 or email me at firstname.lastname@example.org. I will be happy to talk with you for free over the phone. I work with clients in the northern Atlanta suburbs, including Marietta, Woodstock, Kennesaw, Canton, Cartersville, Acworth, Smyrna, and Roswell.
Probably the biggest reason parents of minor children want to do Wills is to name guardians for their children. Every parent wants to have the power to pick who they want to raise their children in case they pass away.
In Georgia, when one parent passes away, guardianship goes to the other parent, even if the other parent doesn’t have custody, and even if the deceased parent named someone else as guardian in his or her Will. When both parents pass away, if the parent named a guardian in a Will, and if that guardian is willing and able to serve, he or she is appointed as guardian without a hearing in most cases.
However, obviously not all parents do Wills naming guardians for their children. In that case, if something happened to both parents, the probate court in the county of residence for the parents would have a guardianship hearing to name guardians for the children. Typically, one family member or friend will file a petition with the probate court to serve as guardian, and anyone who objects or wishes to be named as guardian can file an objection. If a minor is over the age of 14, the court will take the minor’s preferences into consideration when choosing the guardian. If the child doesn’t have a preference, the court will look to a biological relative (typically a parent of the deceased first, followed by a sibling of the deceased), then any other adult relative of the minor, then any other adults who are related to the minor by marriage.
Obviously, it’s best to make your wishes about guardianship of your children known in your Will, rather than by potentially having them raised by someone who wasn’t your first choice, or potentially subjecting them to an emotional court battle. If you’re in north Georgia, including Marietta, Canton, Kennesaw, Woodstock, Acworth, Cartersville, Smyrna, or Roswell, call Sarah White, guardianship attorney, at 678-453-6490. Call me to learn more.
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.
If you are concerned about your future and you feel that you may need a power of attorney or a healthcare directive, call Sarah White, Marietta wills attorney, at 678-453-6490. I serve clients in Canton, Cartersville, Roswell, Acworth, Woodstock, Kennesaw, Smyrna and the surrounding areas. Call today to learn more.
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.
Do you think that your estate planning documents may be out of date? If you’re not sure, call Sarah White, Marietta estate planning attorney, at 678-453-6490 for a free consultation. I will be happy to discuss your situation with you. I serve clients in the northern suburbs of Atlanta, including Kennesaw, Marietta, Woodstock, Acworth, Cartersville, Canton, Smyrna, Roswell, and the surrounding areas. Call today to learn more.
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 helps clears up any confusion. If you have any questions about living wills, Georgia Advance Directives for Healthcare, living trusts, or any estate planning-related matters, feel free to call me, Sarah White, Marietta estate planning attorney, for a free phone consultation at 678-453-6490. I work with clients in the surrounding counties, including Cobb, Bartow, Cherokee, Douglas and Paulding.
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 do 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 concerned about an elderly loved one, you should seek the services of a qualified Georgia estate planning attorney. If you’re in the metro Atlanta area, including Marietta, Acworth, Woodstock, Kennesaw, Roswell, Alpharetta or Decatur, call Sarah White, Marietta estate planning attorney, at 678-453-6490 today.
If you do a Will in one state, it is generally valid in all states. However, if you move you should usually have your Will and other estate planning documents reviewed by an attorney in your new state at a minimum. Although the Will may be legally created in that state, there are variations in state laws that can have an impact on your estate.
For example, in Georgia we prove our Wills using a self-proving affidavit and a notary, so that witnesses aren’t required to be called into court to testify that the Will is yours. However, some states don’t accept self-proving affidavits. States have different rules on what property a spouse is required to inherit. Some states allow holographic Wills (Wills written entirely in the handwriting of the testator) and some don’t.
Your Power of Attorney and Healthcare documents will also need to be reviewed in your new state, and probably updated. Although you may consider it a hassle to update your documents with each move, odds are it”s been at least a few years since you drafted the documents, so they probably need to be reviewed anyway. If you have just moved to Georgia and would like me to review your Will, Revocable Living Trust, Power of Attorney, Healthcare directive or other documents, give me a call at 678-453-6490. I would be happy to help you and welcome to the Peach State!