Georgia has this crazy law, called Years Support.  Here is a good synopsis of what it is and how it’s relevant by David L. McGuffey, Atlanta Estate Planning Attorney:

The Georgia Probate Code provides that the provision of year’s support for the family of a decedent is a necessary expense of Estate administration and is preferred before all other debts. O.C.G.A.§ 53-3-1(b). The surviving spouse and minor children of a testate or intestate decedent are entitled to year’s support in the form of property for their support and maintenance for the period of 12 months from the date of the decedent’s death.

If a testator makes provision in his or her Will for the spouse in lieu of year’s support, then the spouse must elect against the Will. O.C.G.A.§ 53-3-3.

The petition is filed in probate court and must be filed within 24 months of the date of death of the decedent. O.C.G.A.§ 53-3-5.

Interested parties are served with the petition. If there is no objection, then the petition is granted. If an objection is filed, then the probate court shall hear the petition and, upon the evidence submitted, shall determine the property to be set aside taking into consideration the following: (1) The support available to the individual for whom the property is to be set apart from sources other than year’s support, including but not limited to the principal of any separate estate and the income and earning capacity of that individual; (2) The solvency of the estate; and (3) Such other relevant criteria as the court deems equitable and proper. The burden is on the petition to prove the amount necessary. O.C.G.A.§ 53-3-7.

Note: As with all pages on this website, this page is provided as a courtesy. It should not be relied on as a substitute for appropriate legal counsel.

Technorati Tags: Atlanta Estate Planning Attorney

Technorati Tags: Atlanta Estate Planning Attorney

This is a great article by my friend Steve Worrall, another Atlanta estate planning attorney, about the need for estate planning and whether it makes sense to use the online “kits” that allow you do prepare your own without the help of an attorney.  I agree with his opinion as he writes below:

Technorati Tags: Atlanta Estate Planning Attorney

Estate planning is the process of deciding how to transfer your assets at death in a cost efficient and effective way.  Without a good Atlanta Estate Planning Attorney, you could lose a sizable portion of your estate to taxes unnecessarily.  While avoiding taxes is an obvious reason for estate planning, a more important reason may be in its ability to allow you to direct the transfer of your assets after death.

If you have an old Will, it may be time for an upgrade.

Once executed, your will should be updated regularly, especially under these circumstances: A birth, marriage or divorce in the family; a move to another state; a change in tax laws; a change in the status of dependent children; impending retirement; or a change in personal circumstances or needs.

An out-of-date will can be more trouble than having no will at all. Consider a situation involving a man who executed a will in 2001, giving $10,000 to a woman he named as a “friend.” A year later, the man and woman get married. The man dies in 2004. Unfortunately, the man never updated his will. At her husband’s death, the woman claimed her elective share as a wife (one-third of the total estate) rather than abiding by the terms of the will. The man’s children from his first marriage objected. The court could decide that the surviving spouse is limed to $10,000.00 from the estate.

The following is 10 life changes that have the potential to affect your estate and would indicate the need for a revised Will:

o Births

o Marriage or divorce-yours or one of your children’s

o The death or incapacity of a named beneficiary in your will

o Changes in your personal net worth

o Change of your needs or your beneficiaries’ needs

o Change of residence-Do you now live in a different state? Check the laws of that state.

o Changes in the tax law

o Change of personal representative of your estate or guardian of dependents under your care

o New charitable interests

o Retirement

What Happens If You Die without a Will? If you don’t have a valid will, the state where you are domiciled (i.e., the state in which you live most of the time, vote, have your driver’s license) will decide what happens to your assets. For example, in Georgia, if you die leaving a surviving spouse and two children, and no Georgia will, the surviving spouse does not inherit the entire estate.

Planning for Your Will. If you are married or single, if you have children or relatives, you need a will. If you have charitable causes you want to help perpetuate, you need a will. If you own a home or have a bank account, stocks or any other kind of property, you need a will.

Having your will prepared by an attorney and executed according to state guidelines is essential. Several steps are necessary for a will to be legal.

o It should be in writing.

o It should be signed by the one creating the will.

o It should be acknowledged to be the will of the person who signs it.

o It should be dated.

People who are not beneficiaries of the will must witness the signature of the person who creates the will. They must also sign it as witnesses. Also, if a will is notarized by a third witness it makes the process of probating the Will much easier.

Technorati Tags: Atlanta Estate Planning Attorney

As an Atlanta estate planning attorney, I often deal with divorcees.  This is an article illustrating how important it is to get your will (and trusts) revised in the event of your divorce.

I’ve handled plenty of divorces and I realize talking with your Atlanta Estate Planning Attorney is probably the last thing on your mind!  But, after everything you’ve just gone through in the divorce, do you really want to leave your estate to your ex?

State law governs these things, and frankly, it’s not quite that bad in Georgia!  In fact, Georgia amended their laws assuming that a divorced couple would NOT want to leave their assets to each other.  After all, they just got through fighting about who gets what, right?

At one time, a divorce would automatically revoke an otherwise valid Will In Georgia.  So, the gifts to the college, the golf clubs to the nephew, and Aunt Sally’s wedding ring to your daughter, were all out!  The entire will was thrown out.

Now, that is not the case.  Most of the will stays in place but the ex-spouse is treated as though he or she had predeceased the testator.  I know, that sounds like lawyer-talk.  Here’s an example:  John and Sally, a married couple, draft wills leaving their assets to each other.  After that, they divorce but neither re-draft their will.  John dies.  Although his will still says that Sally is the beneficiary, the court will “interpret” the will as if Mary was also deceased.  So, John’s assets will go to whomever he put in the will to take in the event Mary was not alive at the time of his death.  (Here’s another reason it is important to put in contingencies and alternatives in your will.)

An Atlanta estate planning attorney knows this.  However, most non-lawyers don’t!  So, if you do not change your will after your divorce, you may find yourself in a needless battle.  My advice is to change your will!  At least execute a “Codicil”, an amendment of sorts, changing the beneficiary from your ex-spouse to someone appropriate so that it is crystal clear.

Here’s a little detail that is important to note:  The law specifically references “final divorce”.  If you have filed for a divorce but it is not yet final, then this construction (interpretation) of the will won’t apply.  The lesson here is, if you are in the middle of the divorce, go ahead and change your will.  The divorce process may kill you and then everything goes to your current-but-soon-to-be-ex-spouse!

Don’t stop with the will.  Look at your beneficiary provisions in life insurance policies and retirement accounts.  In this case, you must change the beneficiary designation.  Unlike a probate judge who would analyze the situation and rule accordingly, an insurance company may not get so involved.  Once notified of your death, they’ll simply send out a check to whoever is listed as beneficiary.  After all, it is not inconceivable that ex-spouses remain friends and leave those designations in place after the divorce.  So, if this is NOT what you want, get on it!

Also, look at your Heathcare Directive.  This is the instrument in which you have designated who you want to decide when to “pull the plug”.  Well, I am willing to bet that after a divorce, your ex-spouse is NOT that person!  Don’t worry, Georgia law intervenes to prevent that!  But, you still need to select someone else to take on this very important position.

This also goes for any financial powers of attorney that you may have executed permitting your spouse to handle financial matters if you are indisposed for some reason.  Really?  Give your ex the keys to the bank?  I don’t think so!

These changes (in your will or trust, and powers of attorney) can be made at any time whatsoever.  However, if you are in the middle of a divorce (meaning, it is filed but not yet final) then some actions will be restricted until it is final.

When you file for a divorce, the court implements what is called a Standing Order, restraining your ability to move, transfer, sell or otherwise dispose of any marital assets.  Obviously, one person should not be secreting the marital assets away from the other.  So, no changes can be made during this time on certain accounts, like retirement accounts and other investment accounts.

As an Atlanta estate planning attorney who is also experienced in family law, I advise you to seek counsel on your estate matters BEFORE you file for a divorce.  That way, you (and your kids) have the protection you need if you become incapacitated or pass away suddenly during the process.

Technorati Tags: Atlanta Estate Planning Attorney, powers of attorney