Essential Estate Planning Documents

People often ask: What estate planning documents do I really need to protect myself and my family? In Georgia, where I practice, there are three:

An Up-to-date Will

A will passes your property at your death. It can be revoked or changed any time before you die. It only becomes effective to deal with your property after you die, when it is filed for probate (see my post on “What is Probate?”). If done properly with good professional counsel, it can be effective in passing your property to your loved ones in a way that is helpful rather than harmful to them. Without a will, the state will dictate what happens to your property at death (see my post on “The Government Has Made Your Will”). A will can also be used to determine who will raise and provide for children if their parents are no longer living (see my post on “Thy WILL Be Done (Right)”). A will must be signed with very strict formalities, or it is null and void. It is best carried out by an experienced estate planning attorney (see my post on “It’s on the Internet - What Could Possibly go Wrong?”).

A Financial Power of Attorney

A financial power of attorney (POA) delegates power to another person to handle your financial matters while you are living. It expires when you do, unlike a will, which only becomes effective after death. If you became disabled, either temporarily or permanently, a will does you no good. No one has power to handle your financial accounts unless that person is a joint account holder. If you own real estate with another person, including a spouse, the property cannot be sold or refinanced if either owner can’t be at the closing. Everyone, young or old, could become incapacitated at any time. Without a POA, an expensive time-consuming court-supervised conservatorship is necessary to deal with property matters. A POA allows you, not the court, to keep control and keep the lights on and the bills paid.  

An Advance Directive for Health Care

This comprehensive form is created by law in Georgia, and allows you to name a Healthcare Agent to make medical decisions for you if you’re not able to do so. You can also make your wishes clear about special concerns such as autopsy, organ donation, final arrangements and life support issues. It is literally a matter of life and death. Don’t neglect this crucial area.

These essential estate planning documents will give you peace of mind in good times, and will protect you and your loved ones in times of crisis. I have helped protect families for nearly 20 years. Call me, John O. "Jack" Moore, at (770) 277-7767 or email me at johnomoorelaw@gmail.com for a free consultation. My website is www.johnomoorelaw.com, and contains the blog posts referred to above and other helpful information.

Thy WILL Be Done (Right) 

10 Bullet Points to Protect Your Loved Ones

1. Name the Right Executor - Choose the right person to carry out your wishes. Options include spouse, family members, friends, financial institutions.

2. Name the Right Trustee - The trustee manages property not left outright to beneficiaries.  The "trust" part is there for a reason! May be the same person or different from the Executor.

3. Name a Guardian for Any Minor Children - The Guardian raises the minor children if both parents are gone. May be the same or different from the Executor or Trustee.

4. Clearly State Who Gets What and How They Will Get It - Spouse, family, friends or charities? Outright or in trust? Special needs? Tax or control issues? Restrictions, incentives?

5. Coordinate Non-Probate Property - Joint Accounts, retirement plans, insurance, jointly-owned property, etc., are outside your will, but must fit with the plan of your will (see my post on “What is Probate?”).

6. Must Be Signed and Witnessed Properly - Strict formalities must be followed or your will is null and void (see my post on “It’s on the Internet - What Could Possibly go Wrong?”).

7. Have a Self-Proving Affidavit - Keeps Executor from having to track down witnesses years later.

8. Empower your Executors and Trustees - Pick the right people, then grant them the powers to do their jobs without undue delay and expense. In most cases, you can waive requirements for inventories and court supervised returns that eat up time and money.

9. Keep it Where It Will be Found – Keep your original will and other important papers in a safe place and let your Executor know where it is. Hide and seek is not a good use of the Executor's time! 

10. Review and Update Regularly - Your life changes, and so should your Will. No plan is right forever. Review at least every few years or if big changes happen in your life.

These bullet points raise crucial issues but only scratch the surface. An experienced estate attorney can help you make the right decisions. I have helped protect loved ones and families for nearly 20 years. Call me, John O. "Jack" Moore, at (770) 277-7767 or email me at johnomoorelaw@gmail.com for a free consultation.

DON’T HAVE A WILL?

Don’t Worry – The Government has Already Made It for You!

Charles and Jennifer (names have been changed) had been living together in unwedded bliss for twelve years, when Jennifer, who owned their condo, died suddenly from a stroke. Being only in her thirties, she had never made a will. A few weeks later I got a frantic call from Charles. Jennifer’s parents, who despised him, had sent him a certified letter giving him a week to vacate the condo or be evicted. I was able to buy him a little more time, but soon Charles, already grief-stricken, was also homeless (even though he had been paying half the mortgage payment), because of the will the State of Georgia had made for Jennifer without her even knowing it.

Most people don’t make their own will, so every state has a law of intestate succession, decreeing who inherits from a dearly departed one with no will. “Intestate” may sound like a male hormone issue, but it is really an inheritance issue! State laws vary, but intestate succession is based only on relationship by blood, adoption or marriage. Georgia law says that since Jennifer had no spouse or children, her parents were her heirs and became the owners of the condo. Georgia has no common-law marriage, so Charles had no more rights to the property than a stranger. Jennifer could have left him the property but never got around to it.

Two other examples of government-mandated inheritance in Georgia:

1. Tom dies without a will, leaving a wife, JoAnn, their ten-year old son, Joey, and Tom’s son Tommy from his previous marriage. Tommy is eighteen and in a drug rehab program. Tom had a brokerage account worth $300,000.00 in his name only. The result? JoAnn gets $100,000.00; Joey gets $100,000.00 that has to go into a court-supervised conservatorship account, to be turned over to him at age 18; and Tommy gets a check for $100,000.00, delivered to him at the rehab facility. Under Georgia law, children of a decedent and the surviving spouse share the probate estate, regardless of whether the children are also children of the surviving spouse, and they get their share when they reach majority (18).  

2. Arlene, a childless widow, lives in a house that she owns. Her stepdaughter, Cathy, who quit her job and has cared for Arlene twenty years, lives with her. Arlene thinks of Cathy as the daughter she never had. Arlene dies without a will, leaving a brother, Bill. Arlene’s deceased sister Martha left five children. Neither Bill nor Martha’s children have seen Arlene in decades. The result? Bill gets 50% interest in the house, and Martha’s children each get 10%. Cathy gets nothing, because stepchildren aren’t covered under Georgia intestate law.

Sadly, these harsh results are far from unusual. If you haven’t made a will, the state already has one for you, but your loved ones may not like the results. Carry out YOUR wishes, not the government’s. I have helped protect loved ones and families for nearly 20 years. To find out more, call me, John O. "Jack" Moore, at (770) 277-7767 or email me at johnomoorelaw@gmail.com for a free consultation. You may also visit my website at www.johnomoorelaw. 

What is Probate, Anyway?

A recent client urged, “I want you to do everything you can to avoid probate when I die.” This statement was immediately followed by, “What is probate, anyway?”

Good question! Think of probate as recycling of assets, or as the legal embodiment of the old saying that you can’t take it with you. My dad used to say that you’ll never see a trailer hitch on a hearse!

When a person dies owning a house, a bank account, a retirement plan, a car, stocks, or a business, those things are no longer of any use to the dearly departed one. Probate is the legal method of passing title of certain assets to the living. If you have a will, your stuff will go to those you choose; if not, it will pass as the state determines. Probate also is the process of settling the debts of the deceased.

Not all property has to pass through probate. Certain non-probate assets are designated to pass directly by law. Examples are: (1) a house co-owned by spouses as joint tenants with right of survivorship (wording on the deed has to be precise); (2) a 401 (k) or life insurance policy with a beneficiary designation; or (3) a joint bank account.      

In the case of probate assets -- those that do not automatically pass by law or beneficiary designation -- the legal heirs or beneficiaries of a will must file a petition with the probate court in the county where the deceased person resided at the time of death. This Petition, known as a Petition to Probate Will in Solemn Form when the decedent has a will, or a Petition for Letters of Administration when there is none, asks the Probate Court to name a legal representative of the estate – the Executor when there is a will, or Administrator when there is none (Sometimes the generic term Personal Representative is used to cover both).

Heirs at law -- those who would inherit if there were no will -- must either consent to the Petition in writing or be given the opportunity to object to the petition. Once named, the estate representative has the legal authority to collect assets, determine debts, resolve claims, determine if taxes are due, and distribute what’s left to the heirs or beneficiaries.

After the death of a loved one, an experienced probate attorney can help sort through this confusing maze of probate and non-probate assets, and negotiate the numerous technical requirements to complete the process. Attorneys in Georgia typically charge by the hour, so that the cost of probate depends more on the complexity of the estate than the value of the property.  By doing it right the first time, they will save you money in the long run. If you have experienced the loss of a loved one and need advice, call me, John O. "Jack" Moore at (770) 277-7767 or email me at johnomoorelaw@gmail.com for a free consultation.

IT’S ON THE INTERNET

WHAT COULD POSSIBLY GO WRONG?

We live in a do-it-yourself (DIY) society, and the legal world is no different. Popular websites give the impression that it’s easy and cheap to create your own estate planning documents. Hey, the Internet says it’s true! What could possibly go wrong?

Plenty, it turns out. Here are some recent DIY disasters that I have encountered in my practice:

• A husband and wife created internet wills leaving all their property to each other, then witnessed each other’s will, which meant that any provision for them in the will (everything!) was voided - that's right, they got nothing.

• A husband named his church as Executor of his DIY will that left everything to his wife. When he died, much time and money was spent getting the church to decline to serve, and then having the wife (who wasn't named) legally qualified to serve.

• A single woman left her modest estate to her daughter in her DIY will, but the will did not waive the time-consuming and expensive requirements of filing inventories and annual returns. Because of one missing paragraph, most of her estate was eaten up in accomplishing these unnecessary actions.

• A high-level business executive drafted his own will, dividing up his complex estate among his current wife and his children from two previous marriages. While he thought his will was clear, the self-drafted language was ambiguous, and two years and more than $40,000.00 in attorneys’ fees and costs were spent sorting it all out. His hopes for family harmony after his death were destroyed.

All these good people thought they were protecting their loved ones and saving a few bucks. What they had was a false sense of security. All the internet legal sites state that they are not giving legal advice, but that is not my problem with them. My beef with them is that they give the false and dangerous impression that estate planning is easy and can be accomplished without legal advice.

Estate planning is not just filling in the blanks on a computer. What controls the destiny of your loved ones, and what requires excellent legal advice and judgment, is knowing what to put in the blanks and how to draft the language.  A skilled and experienced advisor can help you decide: (1) Who will represent the estate? (2) Who will take care of your children? (3) To whom, how and in what form should your property be distributed? (4) What is "probate" and what passes inside and outside of probate? (5) Who should handle your financial affairs if you are alive but incapacitated? (6) Who should make medical decisions for you if are no longer able to make your own? (7) What are the pros and cons of a living trust? (8) What about estate taxes?

Once these questions are answered, your documents need to be expertly drafted to make sure your wishes are carried out. A misplaced word or a missing or confusing phrase can spell disaster.

My mom always said, "Don't leave a mess for someone else to clean up." Never does that hold more true than in the world of estate planning. Don't trust the fate of your loved ones to the internet! For a free consultation, call me, John O. "Jack" Moore at (770) 277-7767 or email me at johnomoorelaw@gmail.com.