We can all agree that thinking about living is a lot more fun than thinking about dying. But making a few basic decisions and documenting these decisions in the form of a Last Will and Testament can mean a lot for you and your loved ones. Choices you make now can have positive impacts for years to come. By having a will, you are making sure that your voice will be heard after you pass away. This is the first and perhaps most important benefit of having a will — peace of mind for you. Knowing you have selected the right person to carry out your wishes after you are gone can be very comforting. Making your choices known regarding guardianship of your minor children can be quite reassuring. Directing where your property (real and personal) will go upon your death can feel extremely meaningful. By putting off making your will, you run the risk that you could pass away “intestate” (dying without a will). Dying without a will is really an opportunity missed. Choices that could have been made by you when you were alive are instead made in court proceedings according to Georgia law.
Nominating an Executor
Naming the person (or persons) you would like to handle your estate when you pass away is very important. This nominated individual, chosen by you and appointed by the probate court, carries out your wishes as directed by your will. Their duties and responsibilities include gathering your assets and distributing them to your named beneficiaries. They are also charged with paying your debts from your estate and addressing any tax issues. Many people name family members as executors, but friends or professionals are also options. Without a will, the court will choose an administrator for your estate according to statutory guidelines. This person may not be who you would have wanted to handle things.
Incorporating a Memorandum Regarding Specific Gifts
Sometimes people believe they can write down simple lists regarding who is to receive their tangible personal property and expect those lists to be honored once they pass away. Legally, these lists do not have to be followed by anyone if they are not incorporated into a valid will. By stating in your will that a separate writing regarding your tangible personal property is to be followed by your executor, you can make these details not only known but also enforceable. Items of significant monetary or sentimental value, or those that are titled (i.e., motor vehicles) are still best placed in the will itself.
Beneficiaries and heirs are not necessarily the same people. Your legal heirs are the individuals who inherit your assets upon your death if you do not have a will. If you are married with no children, your heir is your spouse. If you are not married, with children, your heirs are your children. If you are married with children, your heirs are your spouse and your children. If you are not married and have no children, and do not have a will, other Georgia laws of descent and distribution apply. Your nearest living relatives, as outlined by law, are determined to be your heirs. The heirs determined by Georgia law may or may not be the individuals who you would want to receive your property when you pass. For example, you may be single with no children, but have a fiancé or significant other. That significant other, absent a will, would not inherit from you. Instead, your property could go to your parents, grandparents, siblings, etc. Or you may be currently married with adult children from a previous marriage and your preference would be for everything to go to your current spouse upon your death. Without a will, your current spouse and adult children would share as legal heirs. On the other hand, beneficiaries are the individuals you choose to inherit your assets upon your death. Regardless of the statutory provisions for determining heirs, your beneficiaries named in your will are entitled to receive property designated for them per your wishes. Naming your beneficiaries is your legal right and a major benefit of making your will.
Designating Guardians for Minor Children
Though difficult to imagine, choosing the individual(s) to raise your minor children in the event of your unexpected passing is a crucial parental responsibility. The only way for your voice to be heard and considered by the court charged with appointing your child(ren)’s guardian is for it to be preserved in your will.
Setting up Testamentary Trusts
Opportunities also exist to create management of your assets for certain beneficiaries over time. For example, trustees may be designated to manage property for minor children until specified ages. Also, special types of trusts, such as supplemental needs trusts for disabled beneficiaries, may be created with the goal of preserving government benefits.
The information contained in this article is intended to be educational and general in nature and should not be construed as legal advice. You should consult legal counsel regarding your specific situation, questions, and concerns. Experienced estate planning attorneys can be vital to maximizing the benefits of making your will. Other estate planning tools such as revocable living trusts, powers of attorney, and health care directives can complement your will to address your goals and wishes.
Deborah “Debbie” L. Britt, Esq., of Law Office of Deborah Lynn Britt, LLC, is an attorney located at 302 Plantation Chase, St. Simons Island. Her practice, which includes estate planning, elder law, and probate law, serves the Golden Isles and surrounding areas. She can be reached for questions and/or to schedule a consultation at 912-268-2655. Her website address is: www.debbiebrittlaw.com.