Estate Planning
What are some typical estate planning documents?
Several of the following documents are typically used as part of the estate planning process:
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A Will, sometimes called a Last Will and Testament, to transfer property you hold in your name to the person(s) and/or organization(s) you want to have it. A Will also typically names someone you select to be your Personal Representative (or Executor) to carry out your instructions and names a Guardian if you have minor children. A Will only becomes effective upon your death, and after it is admitted to probate.
A Durable Power of Attorney for Health Care or Health Care Proxy appoints a person you designate to make decisions regarding your health care treatment in the event that you are unable to provide informed consent.
A Living Will or Directive to Physicians is an advance directive that gives doctors and hospitals your instructions regarding the nature and extent of the care you want should you suffer permanent incapacity, such as an irreversible coma.
A Durable Power of Attorney for Property appoints a person you designate to act for you and handle financial matters should you be unable or perhaps unavailable to do so. The Durable Power of Attorney for Health Care and the Durable Power of Attorney for Property are usually combined into one Power of Attorney for both.
A Living Trust can be used to hold legal title to and provide a mechanism to manage your property. You can select the person or persons you want - often even yourself - as the Trustee(s) to carry out the instructions you want in the Trust and name one or more Successor Trustees to take over if you cannot. Unlike a Will, a Trust usually becomes effective immediately, continues in force during your lifetime, even in the event of your incapacity, and continues after your death. Most Trusts are revocable, which allows the person who creates the Trust to make future changes, modifications and even to terminate it. (If the Trust is irrevocable, changes, modifications and termination are very difficult (and sometimes impossible), although such Trusts often carry some tax benefits.) In our office, we do not favor creating Trusts just to avoid the expenses of probate. The cost of probating a Will in the State of Georgia is much less than in some other states. Trusts may help you avoid or minimize the delays and publicity of probate, if you have an unusually large estate.
Power of Attorney
What is a Durable Power of Attorney?
A durable power of attorney is a form of agency. The person who gives the power is the principal, and the person who receives the power is the attorney-in-fact or agent. Durable in this context means that the agent's power will survive the principal's incapacity or disability. As a result, a Durable Power of Attorney can be used as an alternative to guardianship, provided the principal executed the document before losing capacity. There are two types of Durable Power of Attorney: Financial Durable Power of Attorney and Healthcare Power of Attorney. The two types are usually combined into one document in our office. The difference between the two is the authority granted to the agent, as described below:
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The Financial Durable Power of Attorney is also known as a General Durable Power of Attorney. The agent's authority to act for the principal under a Financial Durable Power of Attorney is based on the powers that the principal gives to the agent. Whether broad, general powers or limited, the specific powers given to the agent are completely determined by the principal. Among other things, the principal may delegate to the agent in the Financial Durable Power of Attorney the authority to make deposits and withdrawals from his/her checking account, to file his/her tax returns, and to sell his/her home.
A Healthcare Power of Attorney specifically grants authority to the agent to make decisions about and relating to medical treatment. For example, the agent may consent to treatment, refuse to consent to treatment, or withdraw consent to treatment. In addition to these decisions directly about medical treatment, the agent may make all arrangements at any hospital or nursing care facility, employ or discharge care personnel, request, receive, and review any information about the personal affairs or physical or mental health of the principal.
In preparing a Financial or Healthcare Durable Power of Attorney, the principal must sign the document in the presence of two qualified witnesses, one of which must be a Notary Public. If the principal is not able to write his/her name, an additional witness must be present. It would be in your best interest to consult with an Estate Planning attorney if you want more information about Powers of Attorneys.
What does a financial attorney-in-fact (agent) do?
Many times, people will give an attorney-in-fact broad power over their finances. But you can give your attorney-in-fact as much or as little power as you wish. You may want to give your attorney-in-fact the authority to do some or all of the following:
- Use your assets to pay your everyday expenses and those of your family
- Buy, sell, maintain, pay taxes on and mortgage real estate and other property
- Collect benefits from Social Security, Medicare, other government programs or civil or military service
- Invest your money in stocks, bonds and mutual funds
- Handle transactions with banks and other financial institutions
- Buy and sell insurance policies and annuities for you
- File and pay your taxes
- Operate your small business
- Claim property you inherit or are otherwise entitled to
- Hire someone to represent you in court, and
- Manage your retirement accounts.
Whatever powers you give the attorney-in-fact, the attorney-in-fact must act in your best interests, keep accurate records, keep your property separate from his or hers and avoid conflicts of interest.
Probate
What is probate?
Probate is a legal process during which the court oversees the distribution of assets that were left in a Will. This process can take a matter of months or even a number of years to be completed.
Is there any way to avoid probate?
It's in your best interest to consult with an attorney to minimize the chance of legal complications in trying to avoid probate. In most cases, it will be better for you to go through probate court.
What is a year's support?
A procedure under Georgia law that gives a surviving spouse and the minor children a certain share of the deceased spouse's property. The surviving spouse can take that share instead of accepting whatever he or she inherited through the decedent's Will. If the surviving spouse decides to take the statutory share, it's called "a year's support". In addition, a year's support relieves the surviving spouse of having to pay certain debts of the deceased spouse. It would be advisable to consult an experienced probate attorney to help you with the year's support process.