Here is a list of commonly asked questions.
- Why should I make a Will?
A Will allows you to state how you want your assets (estate) distributed, name an Executor (also called a Personal Representative) to distribute your property, pay off debts and taxes, and handle other business affairs to settle your estate, name a Guardian for your minor children, provide for your favorite charity and set up trust funds.
By having a Will, it will speed up the process of distributing your property after your death and can save expenses. Without a Will state laws will dictate who receives your property, who will serve as Administrator (name given to a court-appointed Executor) to settle your estate, who will serve as Guardian for your minor children, and there will be no charitable bequest to your favorite charity. State laws are strict and rigid, and rarely match what you would want to happen.
- Does a Will distribute all of my property?
Certain assets pass outside of the Will. For example, assets owned jointly by two persons with rights of survivorship will pass directly to the surviving owner. Life insurance, IRAs and pension plan proceeds go directly to the named beneficiary. Property placed in a trust such as a Living Trust, during your lifetime, is controlled by the provisions of the trust, not the Will.
- If I have a Living Trust, do I still need a Will?
Yes. The Living Trust provisions pertain to assets placed in the trust but the Will controls other assets that have not been placed in the trust, such as furniture and household furnishing and clothing.
- How can I change my Will or Living Trust after they have been signed?
First of all, never cross out a sentence or words or make notes on the Will or Trust. To change the Will, your attorney will prepare a Codicil which is an amendment to your Will, or if many changes are desired, your attorney may draft a new Will. A Living Trust is changed by your attorney drafting an amendment to the Trust. A Codicil or Amendment must be signed and witnessed following the same formalities that were used in the signing of the Will or Living Trust.
- If I get divorced, is my Will revoked?
In many states yes, in others - a divorce has the effect of revoking only the provisions that relate to your former spouse. You should check with your attorney to find out what your state law says if you are contemplating divorce.
- What is Probate?
Probate is the court-supervised legal procedure that determines the validity of your Will (if you have one), and supervises: the gathering and inventory of your estate assets, payment of debts, taxes and administrative costs, and finally; the distribution of your remaining assets to your beneficiaries (if you have a Will) or if notóto next of kin as determined by state law. Probate of an estate in Georgia is a simple process and not costly, as in some states.
- How can I avoid Probate?
It takes careful estate planning. Some of the ways to avoid probate include: jointly owned assets with rights of survivorship and creating a Living Trust that is funded during your lifetime. Also, assets such as IRAs, life insurance and pension plans can go directly to your named beneficiary, without probate. Since Living Trust assets avoid probate, individuals who value privacy put assets in their trust. Assets under a Will do not have this benefit, since a Will becomes a public document after a personís death.
- What is a Will "contest"?
This is where someone, usually a disgruntled relative, seeks to have the Will declared invalid by filing a lawsuit or other court action while a while is being probated. The disgruntled relative usually feels that they did not get what they were entitled to of your estate. They hope to have the Will declared invalid and hope to gain an increased share.
Some of the reasons that Wills are contested include: claims that you were not of sound mind when you created the Will or that you did not understand what you were doing; or that you were under coercion or undue influence. Some states allow "self-proving" wills to help discourage Will contests. Attorneys in these states insert a self-proving affidavit at the end of the Will.
- What are the responsibilities of an Executor (Personal Representative)?
An Executorís duties include: collect and inventory estate assets, pay off debts, taxes and estate administration expenses (court costs, attorney fees, appraisals, accounting fees, etc.), and then distribute the remaining assets to the beneficiaries named in the Will.
- How can I leave a charitable bequest to my church and favorite charities?
It can be as simple as stating the amount or percentage value of your estate that you want to go to your church or favorite charity, in your Will. A charity can also be named as a beneficiary on life insurance, IRAs and other retirement plans by listing the charity on a change of beneficiary form provided by the company where the policy or account is held. Check with your church or charity so that they can provide the correct language for you to include them as a beneficiary under your Will, life insurance or IRA/retirement plan.
- How often should I review my Will and estate plan?
- At least every 2-3 years or sooner if any of the following occur:
- Move to another state;
- Death of spouse or divorce;
- Change is estate value or receiving an inheritance;
- Incapacity or death of Executor, Guardian, Trustee or Agent;
- Birth of children or grandchildren;
- Change in charitable giving plans;
- Disability- you or your spouse.
Please note that this is a sample list only. Additional factors or circumstances may necessitate a change in your Will or other estate documents.