Webb, Lindsey & Wade, LLC, lawyers in Peachtree City, GA, Georgia

By: Karen C. Gainey

Although most lawyers would not like to admit it, there are some situations when you really do not need a Will. I have heard many clients express the belief that if you do not have a Will, then your assets go to "the State." That belief is simply not true. It is only if you die with no Will and no blood relatives, that your assets will go to the State. What Georgia law does, if you have no will, is dictate who your heirs are. For example, if you are married at your death and have no Will, Georgia law states that all your assets go to your spouse. If you are married with children at your death (and have no Will), Georgia law states that your assets go your spouse and children.

If you don't mind the state of Georgia dictating the distribution of your assets, or if 100% of your assets are titled joint with the right of survivorship in someone else's name or your assets name a beneficiary to receive that asset upon your death, then you may not need a Will. However, if you have minor children or stepchildren, are in a second marriage, need tax planning or have other plans for your assets than Georgia law provides, you should certainly have a Will.

In my opinion, one of the most crucial times to have a Will is when you have a minor child or children. (Any child under the age of 18 is considered a minor). As stated above, if you are married with children upon your death, and you have no Will, then your assets go to your spouse and children. This outcome may not be so bad, unless your children are minors. If so, then the surviving spouse may, unfortunately end up owning a house, car, bank account or stock account with a 3 year old, or worse yet a 13 year old.

When a minor inherits a certain amount of money, then a Petition must be filed in the Probate Court to have a property guardian appointed. Guardianships can be useful, however, they are cumbersome and expensive. Although the surviving spouse would most likely be appointed the property guardian, that spouse is still responsible for following the numerous, technical rules of guardianships. For example, if the spouse and children inherited a house that the spouse wanted to refinance or sell, then the court would require a Petition. If the spouse wanted to encroach on the principal of the minor's funds for the minor's expenses, the Court would require a Petition. If the spouse wanted to diversify the minor's investments, the Court would require a Petition. These are only a few examples of the restrictions on the guardian and of course I haven't even mentioned the fact that the guardian must post bond, file an inventory and annual accountings.

When you have minor children, most people leave their assets 100% to the surviving spouse. The idea of course is that the surviving spouse will continue to support and provide for the children. If you do end up leaving assets to minor children, your Will can provide that these assets be put into a trust with you naming the Trustee. By writing a Will this way, you can dictate who will manage the funds and what, if any, rules that person will have to follow. You can also extend the age at which the children will have direct access to the money. Under guardianship rules, the minors get all their money at age 18, which is often not a good result. Most trusts are written so that the children do not get their money until ages older than 18, and so that any outright distributions to the children are staggered. All of this handling of money for minor children in a Trust can be done without court intervention.

Also, if you have minor children, your Will should name a guardian of the person. In other words, who you want to have physical custody of and take care of your children if both you and your spouse are deceased. If you do not name a guardian of the person, the Probate Court will do it for you and Georgia law provides a priority of who can be appointed.

In addition to the importance of Wills when you have minor children, wills are useful for numerous other reasons. Some of those reasons are 1) planning for various contingencies, 2) leaving specific assets to different individuals, 3) leaving assets to charities 4) tax planning in order to achieve great tax savings, 4) preventing your long lost great nieces and nephews from inheriting your estate, and 5) assuring that you, not Georgia, dictate the distribution of your assets.

The information for this article was received from independent research on the part of the author. All information is based solely upon the law of the State of Georgia and does not apply to any matter outside of Georgia. This article is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The law is constantly changing, additional facts or future developments may affect subjects contained herein and no guarantee is given that the information provided is correct, complete, or up-to-date. Seek the advice of professional counsel before acting or relying upon any article, form or information in this web site.

In Georgia, two documents can assist individuals with conveying their medical wishes to healthcare providers, a Living Will and a Healthcare Power of Attorney. Although these documents are quite different, most people use the terms interchangeably and don?t realize each document has a different purpose.

Living Wills have been around longer than Healthcare Powers of Attorney, but have more limited use. A Living Will allows you to put on paper your wishes if you are in a certain medical condition, such as a persistent vegetative state with no reasonable expectation of regaining significant cognitive function. The problem is that, although you may be in a condition that you do not want to be kept alive in, the healthcare provide may make a determination that you do not meet the criteria of "persistent vegetative state" (or some other medical condition listed on your Living Will) and thus your Living Will might be found invalid.

Therefore, Georgia created the Healthcare Power of Attorney (HCPOA). This document allows you to name an agent to make medical decisions for you if you are unable to convey those wishes to a medical provider. Therefore, no matter what your medical condition is, the agent can speak for you when you are unable to speak for yourself. Some individuals like to have both documents so that if the Living Will can be used, then the agent named in the HCPOA does not have the burden of making what may be an extremely difficult decision.

The HCPOA is broader and encouraged by the medical community. It is now common practice that if you need to be hospitalized for even simplest procedure, the hospital staff will ask whether you have "advanced directives." When they are asking for advanced directives, they are asking for a HCPOA. Because everyone has different opinions and thoughts about healthcare, a HCPOA is one document no one should be without so that an individual's true wishes can be heard through their agent.