Frequently Asked Questions About Estate Planning 

At the Estate Planning Law Group of Georgia, we believe that knowledge is power. We answer all of your frequently asked questions so you are better prepared to plan for your future. 

Frequently Asked Questions

We are here to answer frequently asked questions about anything from estate planning to probate mediation. If you cannot find the answer you’re looking for below, feel free to reach out and we’d be happy to help!

What is Probate?

Probate is the court and process that looks after people who cannot make their own personal, health care, and financial decisions. These people fall into three general categories: Minor Children (under age 18 in most states); Incapacitated Adults; and People who have died without legal arrangements to avoid probate. Probate proceedings can be expensive and time-consuming. Additionally, the court proceeding and associated documents are all a matter of public record. Many people choose to avoid probate in order to save money, spare their heirs a legal hassle, and keep their personal affairs private.

What is Joint Tenancy with Rights of Survivorship? (in some states it's called “Tenancy by the Entirety” when between spouses)

This is the most common form of asset ownership between spouses. Joint tenancy (or TBE) has the advantage of avoiding probate at the death of the first spouse. However, the surviving spouse should not add the names of other relatives to their assets. Doing so may subject their assets to loss through the debts, bankruptcies, divorces, and/or lawsuits of any additional joint tenants. Joint tenancy planning also may result in unnecessary death taxes on the estate of a married couple.

What is a Will?

The document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the willmaker dies and the original will is delivered to the Probate Court. Still, anyone with minor children needs to have a will. It is the only way to appoint the new “parent” of an orphaned child. Special testamentary trust provisions in a will can provide for the management and distribution of assets for your heirs. Additionally, assets can be arranged and coordinated with provisions of the testamentary trusts to avoid death taxes.

What is a Living Will?

Sometimes called an Advance Medical Directive or Advanced Directive for Healthcare, a living will allows you to state your wishes in advance regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn if you are in a terminal condition (without reasonable hope of recovery) and cannot express your wishes yourself. Oftentimes a living will is executed along with a Durable Power of Attorney for Health care, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.

What does Intestacy mean?

If you die without even a Will (intestate), the legislature of your state has already determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70 percent of Americans currently use it.

What are Beneficiary Designations?

You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.

What is a Durable Power of Attorney and when do I need one?

These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.

What is a Revocable Living Trust?

This is an agreement with three parties: the Trust-makers, the Trustees (or Trust Managers), and the Trust Beneficiaries. For example, a husband and wife may name themselves all three parties to create their trust, manage all the assets transferred to the trust, and have full use and enjoyment of all the trust assets as beneficiaries. Further “back-up” managers can step in under the terms of the trust to manage the assets should the couple become incapacitated or die. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the trustmaker’s death. With proper planning, the couple also can avoid or eliminate death taxes on their estate. The Revocable Living Trust may allow them to accomplish all this outside of any court proceeding.

Who Should Have a Revocable Living Trust?

Whether you are young or old, rich or poor married or single, if you own titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all of your assets together under one plan.

How can I protect my assets from long term care expenses?

You can ensure your assets are protected by setting up trusts, which can be easily done when you have a knowledgeable expert to guide you in the process.

I don’t want to become a burden and I want to remain independent as long as possible. How can I do that?

Make sure your legal documents are in order, and you have made arrangements to cover long term care expenses.

I am concerned that my parents have not given me legal authority to make decisions and their health is starting to deteriorate. What do I do?

Get them to meet with an elder law attorney like us. They will listen to a professional in a way they won’t listen to their own children.

I am veteran or a widow of a veteran who served in war time. Do I have a way to get additional government support?

You may qualify for a benefit called Aid and Attendance that pays for long term care expenses for veterans and widows of veterans who served during war time. We are able to help you find out if you qualify.

Is there a right time to start pre-retirement planning?

Ideally you want to start thinking about the planning stages in your early 50s, but anyone from the age of 50 to 65 would fall into this category.

How do I ensure that my assets will be protected from the government and other predators?

You can ensure your assets are protected by setting up trusts, which can be easily done when you have a knowledgeable expert to guide you in the process.

I want to make sure my spouse is provided for but also that my children receive assets, how do I do that?

We can create a trust for your spouse to pay income for life, and have the ability to spend principal for health and support, but the assets remaining at the time of your spouse’s death will go to your children.

I don’t understand all these different type of legal documents or what I need.

You shouldn’t have to! This is why you need an expert who is willing to take the time to look closely at all areas of your life, to help you understand what will best serve your needs. It is important to us to take the time needed to understand our client’s needs and recommend the legal tools that will serve those needs. We take the time to explain all of our plans extensively so you have the peace of mind of knowing exactly what measures we are putting into place.

I’m in a new second marriage and should something happen to me I want to provide for my spouse, but also make sure that my children are provided for. How can I do this?

You can create a trust to provide income to your spouse for life, with the ability to spend principal if needed for health and support, but at your spouse’s death, the assets will go to your children.

I am divorced and I want to make sure that my children receive my assets should something happen to me, and not my ex spouse. How can I make sure that happens?

You can create a trust for your children, with a family member, friend, or professional as trustee. Your trust can say that no funds are to be paid to your ex, even if your ex has custody.

How can a trust really help me with my child who has special needs?

A person with special needs who is receiving government benefits, or who might be eligible in the future, will immediately lose those benefits if there is an inheritance. You can make sure your child still qualifies for government benefits by leaving the inheritance in a trust called a “special needs” or “supplemental needs trust.” Read more on how we can help you with a special needs trust here.

Are there ways to make sure that assets can be protected even if there are issues with a beneficiary such as mental health issues, addictions, estranged children, or even an impending divorce?

The way to protect assets for a beneficiary who has mental health issues or addictions is through a trust, with someone else managing the assets. If you are estranged from a child, and want to disinherit that child, it is important to avoid probate and pass your assets through a trust. If you are concerned that your child may divorce, and don’t want the ex in law to walk away with half of what you’ve left to your child, you can protect your child’s inheritance through a trust.

Ready to Talk? Schedule Your Consultation!

We're ready to help you get started with estate planning. To schedule an initial consultation, call us at 770-822-2723. You may also contact us online.

Contact the Estate Planning Law Group of Georgia

Contact the Estate Planning Law Group of Georgia

Johns Creek Office

Saddle Brook Office Park
11030 Jones Bridge Road, Suite 208
Johns Creek, Georgia 30022

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