5 Pros of Having A Last Will and Testament

[vc_row css_animation=”” row_type=”row” use_row_as_full_screen_section=”no” type=”full_width” angled_section=”no” text_align=”left” background_image_as_pattern=”without_pattern”][vc_column][vc_column_text]Look, we get it. A will is not something the average person considers until a situation arises where they might need one. In fact, some of the most common misconceptions we hear from our prospective clients is that if you are young, healthy, or have not accumulated significant wealth there is no point in investing in a will. However, you might be surprised to hear that, regardless of your net worth, if you have minor children or own any property, a will is an important document to have. The reality is that the future is uncertain, especially in the midst of a global pandemic, which is why you should consider these 5 pros of having a Last Will and Testament.

1. Avoiding Intestacy

It may seem obvious, but one of the biggest advantages of having a Last Will and Testament is avoiding Georgia’s intestacy statutes. When a loved one dies without a will, they have NO say in how his or her property will be disposed. This means that, depending on what your family tree looks like, property can transfer to distant relatives to which the decedent (or deceased person) had no relationship, property can transfer to a minor child or multiple minor children, or property can transfer to someone you otherwise do not want to have your property. If you are interested in learning more about Georgia’s intestacy statute and how it can be problematic to your estate, check out our article on Intestacy and Why Your Estate Should Avoid It.

2. No Posting a Bond

When a loved one dies without a will, Georgia law mandates that the administrator, or the personal representative handling the estate’s affairs, post a bond for whatever the property in the estate is worth unless all heirs consent to a waiver of bond. Similar to how a bond you would post to get out of jail is used as a deterrent to ensure your appearance in court, an estate bond is used as a deterrent to ensure that the administrator does not mishandle estate property. The problem with estate bonds is you cannot get one at the bondsman with an office next to the jail. Estate bonds come from insurance companies who charge premiums based upon the estate’s value. Thus, the more valuable an estate, the more expensive the bond will be. Further, estate administration takes a minimum of 6-9 months, but oftentimes much longer. Most insurance companies will require you to renew your premium every year, which obviously can become quite costly when dealing with larger, more complex estates.

3. Relief from Inventory/Annual Returns

Similar to the bond requirement, Georgia law mandates that administrators of intestate estates (estates without a will) file an inventory and annual returns with the Court unless all heirs consent to a waiver of this requirement. An inventory and subsequent returns are basically a full accounting of what is in the estate, what comes in, and what goes out every year. This requirement might seem like no big deal, but it can become burdensome when you have to track down every bank transaction and provide all of the accounting statements. Further, if you forget to file an accounting, the court can sanction you and have you removed as the administrator/personal representative. With all of the responsibilities piled onto a personal representative, why add one more that could be avoided through careful estate planning?

4. Freedom of Disposition

Did you know that the United States is one of the ONLY countries in the world that allows its residents to dispose of their property however they wish? In most other countries, property is disposed of to your next of kin no ifs, ands, or buts about it. Here in Georgia, though, disinheritance is commonplace and an important right. When you don’t have a Last Will and Testament, your property will pass to your next of kin by default. Don’t let the state dictate how you gift your property upon your passing.

5. Granting Powers Pursuant to OCGA § 53-12-261

Lastly, and one of the most important reasons to have a will is so you can direct your Executor (the personal representative of your estate when you have a will) to have the power to buy, transfer, sell, or encumber estate property. When you die without a will, or you have a will that does not grant such powers, your personal representative must file a petition through the probate court to get permission anytime he or she needs to transfer, sell, buy, or encumber estate property. This can be unduly burdensome for the estate’s representative, especially in a contested probate matter, because the heirs and/or beneficiaries must be served notice and/or consent to every transaction. If heirs/beneficiaries don’t consent, your personal representative will be in and out of court hearings, which can drain estate assets.

A will does not need to be a complicated or intimidating document. If you are interested in having your Last Will and Testament prepared, or having a will you’ve already had prepared reviewed and updated, call our office at 770-461-2025 for a free consultation. The experienced estate planning attorneys at Brown, Barbour, & Thrailkill, P.C. are ready to assist you.[/vc_column_text][/vc_column][/vc_row]

What is Intestacy and Why Your Estate Should Avoid It

[vc_row css_animation=”” row_type=”row” use_row_as_full_screen_section=”no” type=”full_width” angled_section=”no” text_align=”left” background_image_as_pattern=”without_pattern”][vc_column][vc_column_text]Amid this novel COVID-19 pandemic, more people are thinking about what will happen to their property should they pass away tomorrow. Do you need a Last Will and Testament? What happens to your property if you pass away without one? In Georgia, if you do not have a will, your property passes through intestate succession, also called intestacy. Intestacy is how the state determines who gets your property if you pass away without a valid will. Similarly, intestate estates are those estates that do not have a will dictating how the property should be disposed. This article focuses on why your estate should avoid intestacy, but if you are interested in reading more about why you should have a will, please check out our article, 5 Pros of Having a Last Will and Testament.

When a loved one passes away without a will, he/she have NO say in how his or her property will be disposed. This means that, depending on what your family tree looks like, property can transfer to distant relatives to which the decedent (or deceased person) had no relationship, property can transfer to a minor child or multiple minor children, or property can transfer to someone you otherwise would not want to have it.

A distant or estranged relative receiving property can be problematic for several reasons, the most common being it can be very difficult to track down these relatives, much less their contact information. Additionally, in our experience, estates with distant relatives tend to attract more litigation (lawsuits) that drain estate assets. For example, title to a house could be transferred to 12 different people who don’t wish to share title to a common property. As I’m sure you can imagine, not only does such a transfer end up muddying title to property, but it ultimately leads to additional future lawsuits. In contrast, heirs who share a 1/12 share in property are sometimes unmotivated to help clear title when their potential inheritance is minimal. Either way, dealing with an estate with so many heirs can be a huge headache.

Even without a big family of distant relatives, intestacy is not ideal for families with minor children either. When a loved one with minor children passes away without a will, a portion of the decedent’s property by law will transfer to their minor children. While you may want to leave your property to your surviving children, imagine leaving your surviving spouse to share title in your home with your young child. Not only does your spouse have to deal with grieving your loss and handling all of your affairs, but your spouse will also have to navigate setting up a conservatorship for your minor children, which will require your spouse to post a bond and file annual reports with the Court during the child’s minority.

Lastly, intestate succession does not permit disinheritance. Thus, if a loved one passes away without a will, his or her family has no recourse to disinherit any family member from receiving a share of the estate’s assets.

The good news is that intestacy can be avoided through careful estate planning, and your minor children (or grandchildren) can still be cared for through instruments like testamentary trusts. If you survived a loved one who passed without a will, you may need to take extra steps in administering that estate through the probate Court. No matter your situation, the experienced attorneys at Brown, Barbour, & Thrailkill, P.C. are here to help.

Call us today at 770-461-2025 for a free consultation to discuss your family’s estate and/or probate needs.[/vc_column_text][/vc_column][/vc_row]