When you need a will our family of attorneys will gladly discuss your options with you. We will listen to your wishes and ensure your will adequately reflects those goals. We also assist your family with the difficult situation of disposing of assets and paying outstanding debts when a loved one passes away.

•   What Happens If You Die Without A Will In Georgia
•   Why You Need A Will
•   Why You Need A Healthcare Power Of Attorney
•   Why You Need A Financial Power Of Attorney
•   Questionnaire For Last Will And Testament
•   Terms And Definitions
  

WHAT HAPPENS IF YOU DIE WITHOUT A WILL IN GEORGIA

If you do not make a will or use some other legal method to transfer your property when you die, state law will determine what happens to your property. This process is called "intestate succession." Your property will be distributed to your relatives according to a statutory formula.

In the state of Georgia, the rules of inheritance if you die without a will are as follows:

A. If you are married without children, your spouse will inherit your entire estate.

B. If you are married with children, your spouse and children will share equally your estate with the spouse entitled to no less than one-third of your estate. So, if you have one child with your spouse, they each will receive fifty percent (50%) of your estate. If you have four children and a spouse, your spouse will receive one-third (1/3rd) of your estate and the four children will share equally the remaining two-thirds (2/3rd).

C. If you are not married but have children, the children will inherit your estate, shared equally between them. Please note that if a child of yours is deceased but has living children, those living children will inherit your deceased child's share. This is called distribution "per stirpes".

D. If you do not have a spouse and do not have children, then your parents will inherit.

E. If you do not have a spouse and do not have children and your parents are deceased, then your siblings will share equally your estate, per stirpes.

F. Assuming the facts in E above, but you have no siblings, then your grandparents will share your estate equally.

G. If your grandparents are deceased, then your uncles and aunts will be entitled to your estate.

H. If no relatives can be found to inherit your property, it will go into your state's coffers.

This may or may not be how you would like your estate to be distributed after your death. Furthermore, each state has specific rules of inheritance set forth by statute. This is the scheme in Georgia, but it may be dramatically different in another state. There are several other factors that you should know regarding intestate succession. For example, in Georgia a child born out of wedlock may inherit in the same manner as though legitimate from the child's mother. However, that same child is not entitled to inherit from the father unless certain steps are taken. Please see O.C.G.A. §53-2-3 for further details. Children conceived by artificial insemination are presumed to be legitimate and therefore, entitled to inherit under the laws of intestacy. If your spouse dies without a will, and then you die within six months of that time without a will, the property from your spouse that you would have received goes to your spouse's heirs, not yours, even though you outlived your spouse. These are only a few examples of what can happen without a will. To prevent unintentional distribution of property to heirs you would not have selected, you need a will!

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WHY YOU NEED A WILL

There are some erroneous beliefs out there regarding the need to have a will. Let's set the record straight:

You need a will even if you think you "don't have anything". A will governs much more than the simple distribution of your bank account funds. For example, a will provides the opportunity to select a guardian for your minor children. Without that provision, upon your death the state may decide who takes on that very important task. Wouldn't you rather make that choice?

If you are assuming that your spouse "gets it all" you may be wrong! In fact, in the state of Georgia, if you die without a will, your estate is divided between your spouse and your children under the laws of intestacy. For more detailed information regarding What happens if you Die Without A Will, click here.

Furthermore, the intestacy laws do not govern specific items in your estate. Do you want your grandmother's diamond ring that she left you, going to your brother's wife or your daughter at your death? These issues can be determined in a will eliminating a potential controversy between your survivors.

Another misconception is that a will is an administrative nightmare for your executor and more trouble than it is worth. In Georgia, probate is a simplified process. The will allows you to select the person you want to manage your affairs. If you die without a will, the court will have to select an administrator who will probably have to post a surety bond, likely more trouble than the executor would have under your will.

Please consider these factors and write a will!

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WHY YOU NEED A HEALTHCARE POWER OF ATTORNEY

A Healthcare Power of Attorney permits you to select an agent to make critical decisions regarding your healthcare if you are incapacitated and cannot act for yourself. If you are in critical condition due to an accident or disease, your agent can communicate your desires to medical personnel to assure your care reflects your intentions under the circumstances.

Generally, a Healthcare Power of Attorney describes certain life prolonging treatments. You select which treatment you do or do not want applied in the event you are suffering a terminal illness or are in a permanent vegetative state.

This document is more extensive and replaces what historically has been called a Living Will. A Living Will is only operative if your ultimate recovery is hopeless. A Healthcare Power of Attorney is operative in that case but also is operative when your health is not so dire.

WHY YOU NEED A FINANCIAL POWER OF ATTORNEY

A Financial Power of Attorney allows you to select an agent to act for you in the event you are incapacitated for any reason. For example, if you are hospitalized and physically cannot write checks to pay your monthly bills, your agent can keep your financial life in order until you have recuperated.

TERMS AND DEFINITIONS

Administrator - The administrator is that person appointed by the probate court and qualified to administer an estate of someone who has died without a will.

Beneficiary - The beneficiaries of a will are those designated to take an interest in real or personal property. The beneficiary may be a person or a trust.

Codicil - A codicil is an amendment or a republication of a will. If you change your mind regarding a specific gift or selection of executor, for example, you may write a codicil to your will rather than writing the entire will again. A codicil requires the same execution formalities as your will.

Descendants - The lineal descendants of an individual include those who are born or adopted by the decedent.

Estate - Your estate is all that property, personal and real, in which you have an interest. It includes everything you own, from tangible property such as jewelry, cars, land, and buildings to intangible holdings such as stocks, bonds, and insurance proceeds.

Executor - The executor of a will is the person nominated in a will who has qualified to administer a testate estate. The executor disposes of the property according to the provisions in the will and the directions and requests made by the testator.

Guardian - A guardian represents someone to a probate court proceeding. Usually, a guardian is appointed to represent minors or incompetents. In a will, a guardian may be selected to care for minor children.

Heir - Heirs are those individuals who survive the decedent and are determined under the rules of inheritance to take the property of the decedent if the decedent died without a will. (If a will was in place, those receiving property are called beneficiaries.) Each state has different rules of inheritance determining who shall receive property from the decedent's estate. See If you Die Without A Will, click here.

Probate - When a will is probated, it is proven to a court with jurisdiction, that the will presented is valid. Each state has certain procedures to probate a will. The executor appointed in a will (or the administrator if there was no will) is responsible for probating the will.

Testator - The testator is one who makes a will, and dies with a will.

Trust - There are many forms of trusts. Generally, a trust is a right of property, real or personal, held by one party for the benefit of another.

Trustee - That person appointed to execute a trust. The trustee is selected to manage the trust property for the benefit of another.

Will - This is the legal declaration of an individual's testamentary intention regarding property or other matters. The will includes all codicils.

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