Estate Planning FAQ – Frequently Asked Questions

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When it comes to planning your estate or going through the probate process, there can be many questions. That is why it is important to work with an experienced Marietta estate planning attorney like the ones found at The Farrell Law Firm. Below are just a few of the most frequently asked questions when it comes to estate planning:

Do Wills have to be probated in Georgia?

Generally, yes, but there are times when it is not necessary to probate the Will. For example, if the decedent only owned non-probate assets such as life insurance policies or IRA’s. But, if the decedent owned property such as real estate without rights of survivorship or accounts which cannot have a beneficiary, it is more likely that the Will needs to be probated.

Does Attorney keep original Will?

Usually, no. There was a time when the Attorney kept the original Will for a couple of reasons. First, if you needed to make a change to the Will, you’d more likely go to that Attorney because he had the original Will. Second, the Attorney would typically keep them in a safe place, such as a vault at the Bank. These days, however, most Attorneys will let the client keep the original Will. The main driver behind this change is the ease of which it is for clients to move to another area or state. If a client were to move from Georgia to Texas, it wouldn’t make much sense for the Attorney to have the original Will since the client would most likely need to take it with them and have it changed in the new state.

Who should keep my Will?

It is very important that you keep your Will in a safe place. Most people will keep their Will in either a safe-deposit box at their local bank or in a fire-proof safe at their home. Either way, you should keep the Will versus the Attorney who drafted it.

Are copies of wills legal?

The short answer to this is “no.” Georgia requires the original Will in order to probate an Estate. If the original Will cannot be found, there is a presumption that the Testator (the person making the Will) wanted to revoke the Will. If a copy can be found, the presumption of revocation can be overcome with testimony showing the person didn’t want to revoke the Will. This can be difficult so it is best to make sure the original Will can be found and can be readily available to your family when you pass away.

How do you avoid probate in Georgia?

There are several ways to avoid probate in Georgia and some of them are more palatable than others.

For example, one way to avoid probate is to not own any assets when you pass away. Most people want to own some things throughout their life, so this isn’t really an option.

You could also give away all of your assets before you pass away. This isn’t advisable for two reasons. First, most of us do not know the day or hour we will pass away so timing the giving away of your assets is difficult. Secondly, for tax reasons, it often doesn’t make sense to give away your assets before you pass away.

The two best ways to avoid probate in Georgia is to have a Revocable Living Trust or own your assets jointly with someone else. Usually, a combination of these two ways is the most effective way to avoid probate in Georgia.

What happens if a Will is not probated?

This is an interesting question. This presumes that there is a Will, but for some reason, the family may decide not to probate the Will. Generally, it is always a good idea to at least file the Will.

In some cases, you may not need to probate the Will because there may not be any assets that need to go through probate. For example, imagine that the person only owned a home which they held jointly with a spouse and a life insurance policy that named the spouse as the beneficiary. Although the person had a Will, it’s not necessary to probate the Will because there are no assets to be probated.

But, if a family decided not to probate the Will, it could cause problems in a number of ways. For example, imagine that the person owned real estate that needed to be probated. If the Will isn’t probated, it could cause a problem years later when the family wants to sell the real estate.

Additionally, if the Will isn’t probated, some property could be in a perpetual state of being “froze.” In other words, the property may just sit there until the Court decides where it should go.

So, although it is possible to not have to probate a Will, it is always a good idea to at least file the Will.

Does Georgia have an Inheritance Tax?

Georgia does not have an Inheritance Tax as of July 1, 2014.

What does an Executor do?

Although they do many things, an Executor’s primary role is to distribute the assets of a person who has passed away according to that person’s wishes as outlined in a Last Will and Testament.

What is an Estate Tax?

The Estate Tax is a tax levied upon a person’s estate when they pass away. While Georgia does not have an Estate Tax, the U.S. Government does have an estate tax. However, the federal government allows for an exemption depending on the size of the estate so that if the estate falls below the exemption amount, there will be no estate tax.

What is the federal Estate Tax exemption amount?

The exemption amount changes every year, but, for 2019, the exemption amount is $11.4 million. So, if the value of your estate is less than the exemption amount, you will not owe any federal estate taxes.

Who can make a Will in Georgia?

Anyone who is 14 years of age or older, has testamentary capacity, and is acting freely and voluntarily in signing the Will.

Marietta Estate Planning Attorney

John P. Farrell, Esq.

Mr. Farrell is the author of Estate Planning for the Modern Family: A Georgian’s Guide to Wills, Trusts, and Powers of Attorney.  You can learn about his book here and learn more about John here.  Join the more than 1,000 people who subscribe to his Newsletter here.  Feel free to send John a message here.

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