Do you have an estate plan lined up for your family’s future? If not, you certainly aren’t alone. As many as 50% of all Marietta residents have yet to prepare a Last Will and Testament.
Some find the idea of doing a detailed asset inventory daunting. Others simply don’t want to think about end-of life decisions. But whether we like it or not, the time will come. And putting off estate planning can cause more pain than dealing with it.
If you become incapacitated or pass away without an estate plan, your family and loved ones will have to make decisions for you while bearing the brunt of probate lawyer costs, the IRS and Georgia Department of Revenue (who could end up with as much as half of your estate).
The court may have to appoint a guardian for your children, and you could miss opportunities to donate to charities or other organizations you are passionate about.
It’s best to just set aside some time now and take care of business. Remember, estate planning doesn’t have to be difficult. Follow this 12-step Marietta estate plan checklist and start preparing for your family’s future today.
Do I Need an Estate Plan?
Everyone has an estate. Your estate includes all the things you own – your home, your car, your bank accounts, digital photos and your music collection.
Many people think of estate plans as something only wealthy families have. In reality, every Marietta resident can benefit from having an estate plan, whether you have a large estate or a modest one.
What exactly is included in an estate plan? Of course, there is the Last Will and Testament, but a solid estate plan should also include provisions for your financial and medical care should you become ill, tactics to reduce estate taxes and probate fees for your family, funeral preferences, guardian preferences for any minor children …and more.
Even if you already have an estate plan, it’s important to review it to make sure all documents are current, legally binding, and still reflect your goals.
This 12-step guide to Marietta estate planning illustrates what’s involved in creating a complete and comprehensive estate plan and what a successful Georgia estate plan can accomplish. You can learn more in our free ebook – Estate Planning: A Complete Guide for Georgia Residents.
It is a good idea to begin your estate plan by identifying exactly what it is you want to accomplish. Of course, you’ll want to make sure that your property and assets are properly distributed upon your passing.
Ask yourself a few questions:
List the things that are important to you and refer to this list as you plan your estate.
Next, you will want to list what things of value will be left behind should you become incapacitated or pass away. This list may include:
Don’t forget about digital assets. There’s a fair chance you have an email account. You may also have a Facebook account, store photos on Snapfish, have ebooks on Kindle, a digital music collection, or even digital currency like Bitcoin or Ethereum.
Keep an ongoing list of your digital assets, note who you want to have them upon your death or incapacitation, and designate someone to access and distribute your digital assets when needed.
List the individuals in your life whom you want to receive a portion of your estate upon your passing. Beneficiaries may be individuals like your spouse and children, or they can be a corporation or nonprofit organization. Maybe you would like to leave part of your estate to Kennesaw State University or the Atlanta Ballet.
Note that some beneficiaries may already be designated through other instruments. For example, certain payable-on-death bank accounts, investment accounts, retirement accounts, 401(k)s and life insurance policies require you to designate the beneficiaries. In addition, property owned jointly will automatically go to the individual with right of survivorship.
These types of beneficiary designations take precedence over who you name in your Will, so it can be helpful to name a trust as the beneficiary of these policies rather than an individual.
We can all take a lesson from the late musician “Prince,” whose unexpected death caught the world off-guard. As you may know, Prince had an estimated estate worth approximately $200 million. Unfortunately, because Prince didn’t have even a basic estate plan, up to 50% of that $200 million could go to the government.
Perhaps he wanted to leave a portion to charity or to avoid as much in taxes as possible. Maybe he would have preferred to keep his net worth private. All of this could have been accomplished had he initiated some basic estate planning.
Of course, not all of us have a $200 million estate, but some things (like children) are worth even more. No matter how wealthy or poor, young or old, everyone should at least have a Will in place.
A properly arranged Will can provide:
One of the nice things about a Will is that you can modify it at any time, so long as you are mentally competent. People alter their Wills when they have a change in financial, family, or other circumstances.
Some estate planning firms like the Marietta-based Farrell Law Firm even offer potential clients with an initial consultation free of charge.
What makes a will legal in Georgia?
Georgia state laws govern the making and validity of Wills. For example, there are several different types of Wills, but Georgia only allows written Wills. Nuncupative (oral) Wills are not legal in Georgia.
Written Wills fall into two categories: holographic (handwritten) Wills and typewritten Wills. Georgia law recognizes both types of written Wills.
Other Georgia requirements for a valid Will include:
You should also fill out a Self-Proving Affidavit along with your Will. This document will allow family members to file your Will without having to contact the two witnesses who signed it.
What is an In Terrorem clause?
There are many different and interesting ways people can control the disposition of their property following their death. For example, you can add an “in Terrorem” clause to your estate planning documents if you think your relatives might end up fighting over their inheritance.
When Aunt Bea gets just $4,000 and Uncle George gets $10,000, Aunt Bea may decide to contest your estate. This could lead to hundreds, even thousands of dollars in costs that were meant for your beneficiaries.
An in Terrorem clause – aka “poison pill” – in your Will puts Aunt Bea in her place. In a nutshell, the poison pill provision says, “Anyone tries to contest the Will gets nothing.” Typically, the beneficiary or heir will be glad to receive at least something instead of potentially losing everything.
A Marietta Will and estate planning attorney with extensive knowledge of the practical effects of property laws, trust code and the probate process can help you draft your Will to accomplish your goals.
Do I need a Will in Georgia?
Can’t we just bypass the whole Will writing process? Won’t our property simply pass to our heirs equally if we die without a Will?
In Marietta, dying without a Will (dying “intestate”) means the state decides who gets your property. Georgia intestacy laws usually determine the distribution. Typically, intestate laws say a surviving spouse and children will receive your property. Sounds fine right? But there are a number of scenarios that could turn out disastrous without a Will.
For example, what if you have no children and both you and your spouse suddenly pass together in an accident? Or worse, if you do have children and die without a Will, who will care for your children?
Briefly, here is how Georgia law distributes the estate of a person who dies intestate:
Married with no children
Entire estate passes to your surviving spouse.
Married with one or two children
If you have one child, your spouse gets 50% and your child gets 50%. If you have two children, your spouse gets one-third of your estate and each child receives one-third.
Married with more than two children
Your spouse receives one-third of the estate. The children would split the remainder of the estate.
Married with one biological child and one adopted child
In Georgia, adopted children share the same inheritance rights as natural born children. Here, your surviving spouse would receive one-third and each child would receive one-third.
Married with one biological child, one adopted child, and one stepchild
If you have stepchildren, a Will is a must! Unfortunately, Georgia law doesn’t grant stepchildren the same inheritance rights of natural born or adopted children. Without a Will, a stepchild would not receive an inheritance.
There are at least two ways you can protect your stepchildren from disinheritance. First, you can write them into the Will. But note that it’s not enough to simply say you “leave your estate to your children” since the Court doesn’t recognize stepchildren as your children.
Second, you can create a trust that names your stepchildren as beneficiaries. Either way, if you’re a stepparent or have biological children who have a stepparent, make sure you protect their inheritance.
Unmarried with no children
If you don’t have a spouse or kids, the Court will try to locate your closest next of kin, sometimes resorting to the “Table of Consanguinity” to determine your blood relatives.
In other words, the best way to control who gets an inheritance once you pass away is to take the time to draft a legally valid, written Will. A Marietta Will and estate planning attorney can help double check that your Will is as clear as possible and your assets will go to the people you choose.
When preparing your Will, you will need to name an “executor” (sometimes called a personal representative). You can either choose who you want to be your executor, or the court will appoint one for you.
Under Georgia state law, an executor must be over 18 years old and of sound mind. There are certain other restrictions on executors, including specifications around corporate executors and out-of-state executors. An experienced Marietta estate planning and probate attorney can help determine whether your chosen executor meets the state requirements.
Typically, people choose a surviving spouse, children or siblings to be the executor. It helps to consider some of the things your executor may be required to do.
An executor is responsible for making sure your property is distributed properly. They process any necessary transactions, deal with creditor claims and file tax returns on behalf of your estate.
If you own a house, your executor may have to maintain the upkeep of the house until the estate is settled. Your executor may also need to pay your bills from the estate and make court appearances.
With that in mind, it is usually best to consider someone who lives near the courthouse and where most of your assets are located. Having to check mail, maintain property and make court appearances in Marietta may be difficult for someone who lives in Chattanooga, Tennessee.
Additionally, you will want to carefully consider any family dynamics if you want a family member to serve as your executor. Some family circumstances could lead to squabbles or Will contests. You will probably want to discuss the executor issue with the family members who will be affected by your decision.
Many people believe that a Last Will and Testament is all they need when it comes to estate planning. But since your Last Will and Testament covers only your affairs after death, it does nothing for you should you become incapacitated and unable to state your desires and wishes regarding your finances during life.
One of the more important features of an estate plan is having a set of disability documents in place and assigning power of attorney. As opposed to an executor who handles your affairs after you die, a power of attorney handles your affairs while you are alive – in the event that you are no longer able to communicate or care for yourself.
Because the power of attorney becomes ineffective following your death, a power of attorney is just as important an estate planning tool as your Last Will and Testament.
There are a range of situations in which you can grant a power of attorney:
What is a Georgia Statutory Form Power of Attorney?
The Georgia legislature has created a form called the “sample power of attorney” or “statutory power of attorney” that can be used to create a financial power of attorney (though this is not the exclusive method for creating the power of attorney).
It is best to either seek legal advice in creating a power of attorney or to follow the statutory form as closely as possible.
What is a Georgia Advance Directive for Health Care?
The phrase “advance directive for health care” may sound foreign to you, but you may be familiar with the phrases “durable power of attorney for healthcare” and “living Will.” In most states, a living Will describes your preferences for emergency medical intervention or life-support in the event that you become mentally incapacitated or otherwise unable to communicate.
In 2007, Georgia essentially merged the durable power of attorney for healthcare and living Will into what is now known as the Advance Directive for Health Care. An advance directive for health care allows you to specify any important preferences you have about your medical treatment.
Several types of taxes can be involved with an estate. The estate owner may be required to pay estate tax, those who inherit the estate may be required to pay inheritance tax depending on the state, and capital gains tax also comes into play.
For many years, Marietta residents were subject to a state estate tax based upon the federal estate tax. In 2005, Congress phased out the portion related to state estate taxes, so Georgia stopped collecting estate taxes.
It was always a possibility that those taxes could come back, so Georgia decided to eliminate the estate tax altogether in 2014.
The federal estate tax still applies, but there is a pretty high exemption amount (which varies each year). If the estate is of less value than the exemption amount (currently $11,200,000), then no federal estate tax is owed. If it is above the exemption amount, the value above the amount can be taxed as much as 40%.
Surviving spouses are able to take advantage of any unused exemption under something called “portability,” which increases his or her exemption by the amount of the unused exemption.
Say Mitch dies with an East Cobb estate valued at $6,000,000. Deducting this value from the current $11,200,000 exemption amount leaves an unused exemption of $5,200,000. This means Mitch’s spouse’s estate tax exemption goes up to $16,400,000.
Being able to “port” the unused exemption is critical to increasing the exemption of the surviving spouse.
Most estate values will fall under the exemption amount, so many individuals don’t have to worry about federal estate taxes. The tax most people should be concerned with is capital gains tax.
Capital gains tax applies when an asset that has appreciated in value is sold. Say Mary bought stock in Apple for $25,000 (the “basis”), and then later sold it for $75,000. Mary will have $50,000 in gain and will pay tax on this “capital gain.”
Now say Mary didn’t sell the stock, but instead transferred the Apple stock to her son James. Which “basis” amount James uses will determine what capital gains tax he will owe.
If James inherits the Apple stock after Mary dies, he will be able to use the value of the stock at the time of Mary’s death rather than its value at the time it was purchased to calculate his capital gains tax – the “step-up basis.” If James sells the stock for $150,000 shortly after Mary’s passing, he will not pay a capital gains tax as a result of the sale.
However, many parents go ahead and give their assets away before they pass (usually to avoid the probate process). The problem here is that the person’s heirs will receive a “carryover basis” rather than a “step-up” basis.
Say Mary gifted her son James the Apple stock before she died. When James got the stock, it was valued at $150,000 and he decided to sell it right away. But since Mary gave it to him as a gift rather than an inheritance, James will have to deduct the original $25,000 “basis” from the sale amount and will incur a capital gains tax on the gain of $125,000.
Consulting with an experienced Marietta Will and estate planning attorney can help make sure you take advantage of massive opportunities to minimize taxes, court fees and legal expenses for your loved ones after you pass.
There are different levels of asset protection. One of the most basic levels of protection involves taking advantage of certain instruments that contain significant federal and state protections.
Take Richard, a talented singer who makes a respectable living leading a band in Athens. He puts the vast majority of his earnings in a 401(k) and life insurance policies.
Later, an unhappy customer sues Richard, saying his singing is so bad that the customer is no longer able to enjoy good music. After obtaining a sizeable judgment against Richard, the customer is bummed to learn that Richard’s 401(k) and life insurance policies are generally exempt from the hands of creditors.
Because of the nature of Richard’s holdings, his assets are safe from the disgruntled customer.
Another level of protection involves creating and maintaining proper business entities.
For example, say Christina has an interest in real estate and uses her disposable income to purchase Marietta homes and turn them into rental properties. In addition to the seven rental properties she has accumulated, she has a variety of financial investments in stocks and has amassed a considerable net worth.
Unwittingly, Christina has set herself up for a potential disaster. When she purchased the rental properties, she purchased them in her personal name and not in the name of a business. If someone were to slip and fall at one of her rental properties, her other rental properties – along with her personal fortune – are susceptible to liability resulting from litigation involving the injury.
One of the more popular business forms for liability protection is the Limited Liability Company (LLC), which allows for limited liability for the members or owners. Better protection from liability and the ease of maintaining corporate formalities makes the LLC a go-to business model for asset protection.
In Christina’s case, it may be a good idea to put her rental property in the name of an LLC or other business. Putting it in her individual name will make her personal residence subject to a lawsuit relative to the rental property.
Likewise, if you own a business, make sure you incorporate it and keep up with the proper corporate formalities. Persons involved in high-risk business ventures or who work in high-risk professions like the medical or legal fields should take steps to shield themselves from the liabilities that come with those fields.
Many states require or suggest that professionals such as doctors, lawyers, accountants, architects, dentists, land surveyors, veterinarians, even harbor pilots, become incorporated as a certain business entity. Many states offer Professional Limited Liability Companies (PLLC).
Some states limit the types of business entity depending on the profession and make you choose between the PLLC and a Professional Corporation (PC).
An even higher level of protection involves creating a Domestic Asset Protection Trust (DAPT).
If you are a professional and you need to incorporate, it is important to retain a Marietta estate planning attorney to help you. Creating, keeping, and maintaining proper corporate formalities is key to obtaining limited liability from potential loss of assets.
If you have minor children, you must have a Will. It’s an absolute. Having a Last Will and Testament is the only way you can name a guardian for your minor children. If you don’t, the Court will decide who raises your children should something happen to you.
But there are several concerns around simply leaving a Will that names a guardian for your minor children. First, the guardian won’t be able to use the inheritance right away. Probate can take several weeks or months after a person’s passing.
In addition, the guardian you name in the Will may not be the guardian that the court appoints although great, great deference is given to who you choose. The Court always has discretion to appoint a guardian in the minor’s best interest.
Once the Court appoints the guardian, it is the Court, and not the guardian, who will control the inheritance until the child reaches 18. While the guardian will be able to use some of the inheritance, they will be heavily supervised. Once the child reaches 18, they will receive the inheritance in a lump sum.
The process of transferring guardianship is often a time-consuming and expensive one, and all expenses come out of the inheritance.
Because of these issues, the best option to provide an inheritance for a minor child is through a trust.
Years ago, people used to list personal effects like clothing, jewelry, furniture, art, tools and dishes in their Will. But time and again, a family member might say, “I love that ring,” or “What nice dishes!” prompting the testator to make multiple changes to their Will (usually via Codicil and a bunch of formalities).
Now, there’s an easier way to list personal effects – through a Personal Property Memorandum or Estate Planning Letter. These instruments list your personal effects and who you want them to go to. You just reference the Memorandum or Letter in your Will, stating that this separate document will dispose of the personal effects, then anytime you change your mind, you can simply write it in the document yourself without going through all of the formalities.
If there is a conflict, know that the Will takes precedence. So if you have two daughters, but only one tennis bracelet, you should note in the Will who is getting the jewelry.
You don’t want to include funeral arrangements in your Will. The funeral will be over by the time anyone gets around to reading it. But you can include a Memorial Instructions document that describes your funeral requests.
In this paperwork, you can explain whether you want a funeral for friends and relatives or whether you’d prefer it to be private. You can list any burial plots you own, any end-of-life wishes regarding organ donation, burial or cremation, and any religious beliefs or memberships you may be involved with. You can even include scripture and music selections you wish to include.
Again, it’s just another opportunity to make things simple on the family when you’re no longer here.
While most of us aren’t as organized as would like to be, it’s important to make it easy for your loved ones to find your estate planning documents whenever the need arises. Once a year, double check that you know where your documents are.
Make sure your family knows where you keep the original Will (don’t assume they’ll simply be able to find it once you pass). “Original” is the key word here. If the family can only produce a photocopy of the Will, the Court will presume that you wanted to revoke it.
Also, make sure your family knows where the Self-Proving Affidavit is. Without it, your family won’t be able to file the Will unless they track down the people who witnessed the signing of your Will. If they are actually able to find them, pray they are willing to fill out a 10 question Interrogatory in the presence of a Notary – all the while spending time and money so they can move the probate forward.
Another important bit of advice is to keep a running list of any trust assets with all of your other estate planning documents. You should review this list annually to make sure nothing has been transferred out or in that is not on the list.
Here are some things you will want to include on your list:
Additionally, there are other estate planning vehicles you can use to make it easy on your family when you’re no longer here. An experienced Marietta estate planning attorney can help tailor your estate plan to meet your specific needs.
How Often Should I Update My Will?
Changes in your family circumstances or changes in the law can change the effectiveness or intent of your estate planning. Once you have an estate plan in place, it’s important to review a few things regularly to ensure the documents are still legally valid and still represent your wishes.
Locate your estate planning documents
As stated above, make sure to locate your estate planning documents once a year, maybe every Tax Day or New Year.
Review compliance with Georgia law
Every year, there are minor shifts in the law. Sometimes major ones. Keeping up with changes in the law can be a bit difficult because, unless you are a Georgia estate planning lawyer, you probably don’t sit around waiting for the latest Supreme Court case to be handed down or keep track of legislation going through the state capital.
This is where having an experienced Marietta estate planning and probate lawyer comes in very handy.
For example, a few years ago, the U.S. Supreme Court issued a ruling in Obergefell v. Hodges declaring that state bans on same-sex marriage are unconstitutional. Before this, estate planning lawyers had to be creative to help same-sex couples with their estate planning. Now, with the options wide open, same-sex couples should revisit their estate plans and have them updated.
And in July 2017, Georgia’s Uniform Power of Attorney Act became effective. This Act, among other things, forces third parties, such as banks, to accept and honor a power of attorney. Additionally, it is designed to protect people from bad agents who misuse the power of attorney and try to hurt the people they are supposed to help.
Powers of attorney created prior to July 1, 2017 will continue to be valid if they were valid at the time they were executed. But, if you created one before July 1, 2017, it is a good idea to execute a new one – especially if the power of attorney is more than a few years old.
Updating your power of attorney will also make it more likely that the bank will honor it, since the banks will be more familiar with the new forms as time goes on.
Changes in the law can also occur if you relocate to a new state. If you’ve recently moved to Georgia, your Will from another state is still valid, but there may be elements of Georgia law that will work to your advantage. Also, if you’ve purchased property in Georgia, it may be necessary to add that property in your estate plans.
Update your beneficiaries
Additionally, your family circumstances will change. Loved ones will pass away and new ones will be born. Your children may marry. You may find yourself a grandparent. You may have a falling out with a family member or business entity. Perhaps those you’ve designated as agents in a power-of-attorney are no longer that close to you. Perhaps you’re concerned with an over-controlling daughter-in-law or a not-quite-perfect son-in-law.
Once every one or two years, give your Will a quick review, updating it with births, marriages, divorces, deaths, new property and new beneficiary designations. Be sure to select a Marietta estate planning and probate attorney who offers free-of-charge consultations.
Don’t forget to review beneficiary designations on things like retirement accounts, 401(k)s, annuities and life insurance policies as they are something you should review from time to time. It’s an important point to remember that, on accounts like these, the beneficiary designation will control who gets the proceeds – not your Will or trust.
Double check your powers of attorney
Like your beneficiary designations, you should review your powers of attorney to ensure your agent is someone you still trust to handle your financial and health decisions.
Do I Need An Estate Planning Lawyer?
You can’t browse the internet or watch television without seeing an advertisement for “Draft your own Will online” and Do-It-Yourself Will-writing software packages. Of course, we all want what’s easiest, fastest and cheapest.
But most of us aren’t willing to sacrifice effectiveness, especially when it comes to planning for our loved ones’ future. And while DIY estate planning is certainly possible, there are risks involved with crafting an estate plan alone.
Unlike most Americans, professional estate planning and probate attorneys have spent decades perfecting the art of the perfect estate plan. DIY Wills are therefore much more susceptible to error without assistance from an estate lawyer. Without a lawyer, you run the risk that your power of attorney, Will or trust won’t function as planned or isn’t legally valid at all.
Mistakes could cost your family thousands of dollars to repair. Without an estate lawyer to help prepare your documents, probate lawyers, the IRS or the Georgia Department of Revenue could get away with a majority of your family’s inheritance.
Even the simplest of plans can benefit from the guidance of an experienced estate planning attorney.
Whether you already have an estate plan, are working on developing one, or just now considering getting started, its best to set up a free consultation with an experienced Georgia estate planning and probate lawyer and get their advice on how best to meet your goals.
John P. Farrell is a prominent Georgia estate planning attorney, lecturer and co-founder of the Marietta-based Farrell Law Firm, one of Georgia’s leading estate planning and probate law firms. The Farrell Law Firm represents clients in Marietta, East Cobb, Kennesaw, Smyrna, Atlanta, Roswell, Rome, Athens, Columbus, Macon, and across the state of Georgia as well as Chattanooga, Tennessee. Questions About Georgia Estate Planning? Contact John Farrell at 678.809.4922 or Connect Online.