Family Estate Law
Why Estate Planning Is Important
Whatever your stage in adult life, it is a good idea to think about and plan for how your affairs will be handled in the event of your incapacity or death. A few simple steps of preparation now will give you peace of mind knowing that your final healthcare wishes will be respected and that your estate will pass seamlessly to your heirs. Surprisingly, more than 80% of all adult African-Americans have not undertaken the most basic step in estate planning. The consequences of failing to execute a will do not fall upon the deceased, but upon his or her loved ones who may not get property intended for them or who may find themselves mired in delays and legal entanglements at a time when they are ill-equipped to deal with them. Estate planning is designed to assist you in: Doing the advance planning necessary to ensure an orderly transition of your estate to those whom you wish to receive it after your heirs, Minimize taxes and other liabilities, and help avoid confusion, family drama and costly litigation.
Most Adults Have An Estate
Many people believe they do not need estate planning. Some believe - erroneously - that they do not have an estate, while others think the value of whatever they do have is not sufficient enough to garner estate taxation, so what's the point? With few exceptions, everyone has an estate - even the young child with a custodial account in his name and the granddaughter who received a lovely piece of jewelry for her 16th birthday. Estate planning is your personal opportunity to make decisions concerning your assets, finances, and healthcare. Although some individuals narrowly view estate planning as a way to assign their assets to heirs, others see it as a way to perpetuate their legacies. Bottom line: If you own something of value that you would pass on to someone else upon your death, you have an estate. Whether you know it or not, you also have an estate plan that will be written by the state if you do not prepare one. The state has one for you free of charge (well, sort of); if you do not get around to writing a will or designing a plan of your own. The one written by the state is managed by the state, and your estate pays mandatory fees to the state. In this instance, funds from your estate will paid first to someone appointed by the court -- a stranger - and then maybe to your family.
Estate Planning Basics
Broadly speaking, an estate plan encompasses the accumulation, conservation, and distribution of an estate. A good plan will enhance and maintain the financial security of individuals and their families. You need certain documents to meet your estate-planning goals, and a basic understanding of the way it all works.
- A will
- Trusts as a complement to your will
- Knowledge of how the estate tax system works
- Current law and how it affects your assets
- Gift tax on generosity
- Applicable state death tax
WILLS: The CornerStone of All Estate Plans
A will is a personal declaration of your intentions about the disposition of your property at death. Everybody should have one. Because a will does not become legally enforceable until your death, it may be changed at any time before the maker's, or testator's, death or mental incompetence. A properly drafted will contains instructions for your personal representative; the executor. The executor is responsible for administering your estate. A will offers many advantages, enabling you to control, to a large extent, what happens after you are gone. With a will you can...
- Choose the executor
- Designate a guardian for minor children or others unable to fully care for themselves
- Distribute your property to beneficiaries you choose
- Be generous to a charity at death
- Minimize estate tax
- Get a sense of accomplishment and peace of mind
The last thing you want to do is die without a will. A person who dies without a will is considered "intestate." Dying intestate can be unnecessarily costly for your heirs and leaves you with no specific say about who receives your assets, or in what proportion those assets will be distributed. Some assets, such as individual retirement accounts and life insurance proceeds, bypass a will entirely and go directly to the beneficiaries listed and filed with the financial firm that handles those products. Otherwise, the state decides who gets what. Each state has a prescribed order for the distribution of property of those who die with no will.
For over 40 years, Hollowell Foster & Herring has assisted its clients preserve and transfer wealth in a manner that minimizes estate taxes and the costs of administration of the estate and maximizes the delivery of their assets to intended beneficiaries. The Firm serves a range of clients, from those with modest estates requiring only basic planning to large complex estates requiring use of sophisticated planning techniques designed to avoid or minimize estate taxes. Our attorneys maintain close working relationships with all integral parties, including accountants, life insurance agents, and financial planners to ensure that a strategic approach is taken in the process of planning our clients' estates. In each case, the Firm's estate planning attorneys provide individualized attention to each matter, the ultimate goal being to develop a plan that meets the unique needs and desires of each client Hollowell Foster & Herring can provide guidance with the following services...
- Last Will and Testament
- Power of Attorney
- Georgia Advance Healthcare Directive
- Wealth Preservation
- Asset Protection
- Special Needs Planning
- Business Succession Planning
- Elder Law and Medicare Planning
- Probate and Trust Administration
- Estate Taxes
The Firm is highly capable of designing plans that make appropriate use of wills, health care directives, and testamentary, lifetime and charitable trusts. Additionally, where the client's needs so require, the Firm can assist in devising appropriate business succession and asset protection plans, including use of family limited partnerships and other such devices. The Firm's attorneys also have considerable experience representing administrators and executors in the administration of estates and have successfully defended wills submitted to probate and challenged defective wills.
The Firm's estate planning attorneys are graduates of law schools of national prominence and have extensive experience advising clients regarding complex legal matters. The Firm uses the latest in electronic research, drafting software and document assembly programs to provide efficient customized estate plans to its clients.
Probate in Georgia
Probate Law in Georgia: What You Need to Know Probate refers to the legal process in Georgia by which a person’s estate is administered. This process enables an appointed individual to carry out the necessary administrative tasks of tying up a loved one’s estate by paying taxes, notifying creditors, and distributing assets to beneficiaries. Georgia probate law lays out how this happens and the rights and responsibilities of those involved. There are several important aspects of the Georgia probate process to consider. These include:
- Probate is not required in every case
- Some probate cases involve no claims of disputes or conflicts and are closed out quickly
- Under Georgia probate law, the personal representative in the estate must publish notice of the proceeding in the local newspaper within 60 days of beginning to serve in this role
- An estate administrator could be held personally responsible for any malfeasance occurring in the probate case
Probate Disputes and Your Estate
Georgia probate law outlines who has the right to challenge estate planning documents as well as what happens if there is no will. Probate disputes can emerge for many different reasons and can add a layer of complexity and additional tension for family members. These disputes include claims against the executor for mishandling funds and allegations of undue influence or lack of capacity surrounding the creation and signing of a will. Probate disputes can not only cause stress to the parties involved but can also delay the closing of the estate administration. If there is no will associated with an estate in Georgia, the proceedings are known as intestate. This means that the court is responsible for determining what happens to the decedent’s property. Without a will, all assets will pass to the surviving spouse if there are no children. If you leave behind both a spouse and children, they will split the assets remaining in your estate. If you have no surviving spouse or children, the executor must take on the job of finding your next of kin.
Setting Up Your Estate
Most probate disputes in Georgia can be avoided with proper estate planning. The role of administrator and executor is an important once, since this person must be organized, financially savvy, and prepared to possibly interact with your beneficiaries. In addition to other payments and paperwork, the estate administrator distributes remaining property to beneficiaries at the end of estate administration. Other professionals and stakeholders can help you outline who will serve in this role and how your estate will be created. These include:
- Family members who might serve as guardians of your children or estate executors
- Trustees responsible for passing on assets placed inside a trust
- Your estate planning attorney
- Your Georgia probate lawyer
- Your accountant and financial professional
Important Georgia Probate Rules
There are several important things to be aware of when it comes to the Georgia Uniform probate rules, including the Georgia probate time limit.
- The person serving as personal representative must be prepared to offer probate of the will as soon as possible after taking on this role
- Estate tax returns and any due payments must be submitted no later than nine months after the decedent passed away
- The executor should keep track of all payments made and all activity occurring within the estate should disputes or allegations of mismanagement arise
- Debts must be paid out to creditors in a particular order before any of the assets inside the estate can be distributed to heirs
The most common type of probate disputes are will challenges. Not everyone is able to challenge the validity of the will. Those who are financially hurt by the will or who could potentially benefit from it are interested parties. These individuals are able to contest the will so long as they show proof of legal grounds. A person who has interest in the will is able to block the will at any time prior to it being delivered to the court for filing purposes. This is known as a “caveat,” which must explain the reasons why the person is objecting to the will. If you pursue this route, the estate enters what is known as solemn form probate. You should act quickly and speak to a Georgia probate attorney immediately if you believe the will is invalid. If you do not contest the will before it enters probate, you have only four years to contest it after the executor requests common form probate. The will does not become final until this four-year period has expired, giving heirs the chance to object during that period. A will is valid until the testator passes away unless a person can show that the will was invalid at the time it was created and signed. A will can be changed at any time before the creator passes away, so long as the circumstances surrounding that new will are legally valid. If a will was significantly revised prior to the death of the creator, this opens the door for more will challenges and contests. Wills can be challenged on several grounds, including:
- Mental capacity
- Undue influence
- Improper execution
Some of the most important statutes related to Georgia probate code include:
- An appointed personal representative must be prepared to take charge of settling the estate administration per GA Code Ann. 53-5-2
- A surviving spouse has the first right to be named as administrator per GA Code Ann. 53-6-20
- The court might require a bond to be posted by the personal administrator under GA Code Ann. 53-6-50
- An accounting might be required unless the beneficiaries opt out of it or the will says that one is unnecessary per GA Code Ann. 53-7-67, 53-7-30, and 53-7-68
- State laws prioritize the claims for payments to creditors If there’s not enough money to pay debts. Families are paid first followed by funeral expenses, probate costs, last illness expenses, and taxes per GA Code Ann. 53-3-1
Knowing the right Georgia probate forms to use can expedite the process for an individual serving in the role of executor or personal representative. Filing this paperwork as soon as possible and as accurately as possible is important. Numerous forms are available to assist with a streamlined management of Georgia probate, including:
- Petition for Temporary Letters of Administration
- Petition to Probate a Will in Common Form
- Petition to Probate Will in Solemn Form
- Petition for Year’s Support
- Petition for Order Declaring No Administration Necessary
Accessing Georgia Probate Forms Online
These forms and many more can be accessed by looking for Georgia probate forms online. Georgia probate forms online can be found here: http://gaprobate.gov/content/2017-2018-fillable-pdf-standard-forms?menu=main
Anyone serving in the role of Georgia personal representative should be familiar with the storing of probate records. All paperwork related to Georgia wills and probate records should be copied and stored in a safe location by the personal representative. While Georgia probate records related to the estate administration will be on file with the government as the executor submits them, it’s recommended that the executor store these on file for at least one year following the close of probate should any questions or disputes arise. Many previous Georgia probate records can be searched online or at the courthouse in which they were filed, so anyone looking for information about a case might be able to access necessary information.
Preparing for Estate Litigation
Without a clear understanding, the Georgia probate court rules can be overwhelming. In order to prepare for estate litigation, there are several steps you must take:
- Understand the relevant Georgia probate codes applicable to your case
- Identify whether or not you qualify as a stakeholder eligible to bring forward a claim
- Gather necessary documents related to your evidence or concerns
- Have the right forms filled out in advance
- Schedule a consultation with a Georgia probate attorney
Do You Need a Georgia Probate Lawyer?
Given the complexities of closing out an estate or handling a dispute, it’s recommended that you find a probate attorney in Atlanta GA. When you have a Georgia probate lawyer at your side, your lawyer will ensure that you file all paperwork by necessary deadlines and that you stay on top of the various responsibilities and requirements of participating in a dispute or serving as the estate administrator. A probate attorney in Atlanta can advise you of your rights and help you with your complicated probate case. Contact our office today to learn more. A probate attorney can walk you through each aspect of your case so that you better understand your next steps. Being organized and prepared can ease the stress of working through a probate dispute.
Do You Need a Georgia Probate Lawyer?
Given the complexities of closing out an estate or handling a dispute, it’s recommended that you find a probate attorney in Atlanta GA. When you have a Georgia probate lawyer at your side, your lawyer will ensure that you file all paperwork by necessary deadlines and that you stay on top of the various responsibilities and requirements of participating in a dispute or serving as the estate administrator. A probate attorney in Atlanta can advise you of your rights and help you with your complicated probate case. Contact our office today to learn more.