Frequently Asked Questions

A Testamentary Will is a legal document that provides for the disposition of property upon a person’s death. The Will must meet certain legal requirements to be honored by the courts. A Will avoids costs and complications for your heirs when you die. Besides providing instructions about who gets your property, a Will provides instructions for payment of your debts, selection of an executor for your estate, and appointment of a guardian for your children. Without a Will, your property will be distributed according to state law and the Probate Court judge will select an administrator for your estate and a guardian for your minor children if your family members cannot agree on an administrator or guardian.

Please remember that just because you have a Will prepared, doesn’t mean that it will have to be used any time soon! However, dying unexpectedly without a Will will cause a lot of needless work and expense for your loved ones.

A lawyer experienced in Wills and Estates practice in Georgia can help you prepare a Will that meets Georgia legal requirements, minimizes taxes and reduces the time and expense of handling your estate.

If you don't have a Will, you give up your right to decide who inherits your property. Your property will be distributed according to state law, which might be quite different from what you would have wished. For example:

The legal fees for having an experienced lawyer prepare a Will are well spent and usually are much less than the costs that would result from dying without a Will.

Your Will should be kept in a safe place where it can be easily located when you die. You do not have to give your executor a copy of the Will, but you should at least tell your executor and trusted family members where your Will is stored. You can include instructions for your funeral arrangements in your Will. However, it may be best to put these instructions in a separate letter. Give a copy of the instructions to your executor or a family member or friend to avoid delays when you die. You can also include instructions about gifts of your body organs to hospitals for research or transplants. Instructions for gifts of body organs can be noted on your driver's license or a separate donor card that you can carry in your wallet.

An executor is a person or organization that you appoint to have the responsibility of seeing that the terms of your Will are carried out. Why should I appoint an Executor in my Will? An executor locates heirs and beneficiaries, pays debts, and distributes property to your beneficiaries. A relative or friend can serve as your executor, but you may consider using a professional executor (such as a bank or trust company) if you have a large estate. An executor should be someone who is familiar with managing property, financial matters, and record keeping. Before naming an executor, confirm that the person is willing to serve. Your Will can state that the executor is not required to furnish a bond or file inventories or returns, saving your estate expense and your executor a lot of time.

What is a Guardian and a Conservator and why should I appoint a Guardian/Conservator if I have a minor child?

A guardian is a person or persons that you name to care for and raise your minor child if you are no longer in life. A Conservator manages your child's financial affairs. If you have children under 18, you should appoint a guardian in your Will. If you and your spouse die at the same time without appointing a guardian, the Probate Court judge will select a guardian to care for your children and a Conservator to manage their inheritance until they become adults.

A Trust is can be a separate document or part of a Will. A Trust is a legal creation that allows you to set aside property to be managed by a Trustee for your behalf or on behalf of someone else. There are several reasons that the use of a Trust might be important. A common use of a Trust is for the benefit of minor children or young adult children. Your Will can create a trust to control the property transferred to your children. A trust is very important if you have minor children or don't want your children to have unlimited access to their inheritance went they reach 18 years of age. Your lawyer can create a trust in your Will that protects your children and the assets you leave them.

When might I consider making changes to my Will or having a new Will prepared?

You may need a new Will if you recently moved to Georgia, married, divorced, have had a child, acquired substantial property, Executors, Guardians or Trustees are no longer able to serve, or you have suffered the loss of a loved one. Read your Will at least once a year to consider changes. You can make changes by having a new Will prepared or by having an amendment (Codicil) to your Will prepared. A codicil may be appropriate for a small change.

An Advance Directive for Health Care gives the person you designate (your agent) broad powers to make health care decisions for you, including power to require, consent to, or withdraw any type of personal care or medical treatment for any physical or mental condition and to admit you to or discharge you from any hospital, home, or other institution, but not including psychosurgery, sterilization, or involuntary hospitalization or certain other treatment. The Directive can also instruct health care providers to withhold or withdraw life-sustaining procedures in the event of a terminal condition or irreversible coma.

The power of attorney does not impose a duty on your agent to exercise granted powers; but, when a power is exercised, your agent will have to use due care to act for your benefit and in accordance with this form. A court can take away the powers of your agent if it finds the agent is not acting properly.

A financial power of attorney is a document that allows you to name one or more persons, your agent, to help you handle your financial affairs. Depending on your individual circumstances, you can give this person or persons complete or limited power to act on your behalf. This document does not give someone the power to make medical decisions or personal decisions for you.

Federal and state taxes may be deducted from your property before it is transferred to your heirs. Under federal law the exemption from estate tax is $1,500,000.00 in 2004. The effective exemption increases to $2,000,000.00 in 2006 and then increases to $3,500,000.00 in 2009, in 2010 the estate tax is repealed completely. Under current law the tax rates that existed before the 2001 changes will be reintroduced in 2011.

The area of estate taxes and estate tax planning is very complicate. A lawyer can help you prepare an estate plan that may reduce or eliminate these taxes.

The general information provided above is not legal advice and may not be applicable to your particular needs or situation. Using information from this web site is not to be considered the establishment of an attorney-client relationship. Reliance on the information contained in this web site is not a substitute for personal legal advice from an attorney who is licensed in Georgia; experienced in the appropriate area of law; familiar with the details of your situation.