Georgia Courts remain closed. That doesn’t mean that your legal options are closed.

[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]With the Georgia Supreme Court announcing that Courts will remain closed until June 12, it has left a lot of people (including lawyers) wondering when court matters can be finalized. Virtually every type of case – criminal jury trials, divorce hearings, evictions, small claims lawsuits – have been in a state of limbo for the last few months.

So does the extension of the judicial emergency mean that you are limited in pursuing all legal options? It does not. Here are some examples of how legal matters can still be pursued during these unprecedented times:

– You can get divorced, albeit of the uncontested variety. If you and your spouse agree on all terms, courts can still grant divorces. We have had several divorces finalized during this time of the courts being closed.

– You can get your divorce started. Courts are still accepting electronic filings. So you can still file your contested divorce case. This is important because when the inevitable court backlog begins to be cleared, your case can be ready to move forward at the appropriate time. Additionally, while the courts are closed, mediation is still being had via video conference.

– You can file for modification of child support. Many people have lost employment due to COVID-19, and it may be many months or years before some people can get their job back (if at all) or earn income similar to pre-COVID levels. But the process can be started to modify child support. Georgia law has a provision that provides, in certain circumstances, that your child support can be reduced dating back to the date you filed your case. So it is important to get your case filed as soon as possible if you have faced an involuntary loss of income and cannot gain employment at materially similar levels as you earned pre-COVID.

– You can file to enforce provisions of your divorce decree that your ex-spouse is refusing to follow (such as nonpayment of child support). The Georgia Supreme Court is considering a rule to have certain civil proceedings held via video conference, which would include contempt (enforcement of your divorce decree) of court. And as with divorce and modification actions, even this rule does not go into effect, you can still get the process started.

– You can attend mediation. Mediation is a requirement in many counties before a final trial can be had (including in divorce, modification, and legitimation actions). So while the courts are closed, mediation can be completed. Many times, mediation leads to completely settling an otherwise contested case – meaning you can completely resolve your outstanding case and finalize it.

– You can have a will made. And you do not even have to come into our office to sign – we can do a will signing via video conference.

So while the courts are closed on a temporary basis, there are several ways to continue to move forward in light of this unprecedented dilemma that we all are facing. Give our office a call (we remain closed for in-office meetings) for a free telephone consultation at 770-461-2025.[/vc_column_text][/vc_column][/vc_row]

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]

What To Expect When a Friend or Family Member Has Been Arrested

[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]If you have a loved one or friend that has been arrested, you probably have many questions about what to expect over the next few days.

First, when a person is arrested, your ability to contact them will be extremely limited – if you are permitted any contact at all. After a person is arrested and brought to the city/county jail, the arrested individual will be booked into the jail – the jail processes the person in, gathering the person’s name and address. During this time, the arrested individual will be prevented access to outside people for security purposes. After booking, he or she may be afforded a phone call (if he or she hasn’t been permitted to make one already).

After booking, a determination will be made about whether or not a defendant will receive bond. Bond is the amount of money that will be paid to the jail for a person to be released. That determination is dependent upon what charge(s) your loved one received.

For many charges, such as Driving Under the Influence (DUI), Driving With a Suspended License, Possession of Marijuana, and Shoplifting, most jails have a preset bond amount, meaning that, very soon after booking, there is a known amount of money that can be paid to the jail to release that person from the jail. This amount has already been established for particular offenses. For example, if a person were to receive a charge of Driving Under the Influence in Peachtree City, Georgia, the Fayette County Sheriff’s Department has a bond amount that is assigned to every Driving Under the Influence case that comes into the jail. A simple phone call to the jail will tell you that amount upon an arrest.
However, for some cases, such as serious felonies, only a judge can set bond. In those cases, the person has to be brought before a judge for a judge to set bond. This is done at what is known as a First Appearance Hearing, which typically takes place the first morning after a person is arrested, or, if a person is arrested over the weekend, on Monday morning following the arrest. At the First Appearance Hearing, the individual who has been arrested is informed of what he or she is charged with and the judge makes a bond determination. Sometimes, individuals are denied bond based upon the seriousness of the offense or the person’s criminal history. Other times, the judge imposes conditions of bond – conditions that the person must abide by to continue to remain out of jail until court. For example, if a person is charged with Family Violence, the judge may set a condition that a person have no contact with the alleged victim of the family violence event.
Once bond is sent, whether preset or by a judge, bond can be posted to release that person from jail. Bond can be posted in several ways – pay the entire amount, hire a bonding company, or post real property in lieu of bond if you own sufficient equity in said property. For example, if a person is charged with Possession of Cocaine, and the bond amount is $5,000.00, that person can be released from jail with a payment of $5,000.00 (plus processing fees) to the jail, or by posting real property (i.e. land) in lieu of bond. Most times, people hire a bonding company. Bonding companies will post a bond on behalf of an individual for payment of a percentage of the bond. So, for a $5,000.00 bond, a bonding company may charge a fee of $500.00 for that company to pay the $5,000.00 to the jail on behalf of the individual.

There are many other events that happen after a person is arrested and the bond determination is made. That is where attorneys come into the picture. It is absolutely vital to consult with a criminal defense attorney as soon as feasible after an arrest is made. An experienced criminal defense attorney is extremely familiar with the arrest and bond process. An experienced criminal defense attorney can appear at a First Appearance Hearing to help argue for bond. Additionally, an experience criminal defense attorney oftentimes can visit and communicate with your loved one while he or she is detained much faster than you can.

The criminal defense attorneys at Brown, Barbour, & Thrailkill, P.C., have years of experience defending persons charged with crimes. We are intimately familiar with the process once a person has been arrested, and we are standing by to assist if your loved one has been arrested. Give us a call today at 770-461-2025 to schedule your free case evaluation. We look forward to assisting you and your family.
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You Just Got a Divorce—Now What?

Your ex-spouse (or soon-to-be ex-spouse) still may be in charge of your estate plan and assets even after you get divorced. This is why it is vitally important that you change your beneficiary designations on your bank accounts, retirement accounts, and life insurance policies, as well as update other estate planning documents to prevent your ex-spouse from inheriting your assets or acting in a fiduciary capacity over your medical or financial matters. By this point, you are shaking, as most people do when they realize this possibility, because now you know that your ex-spouse still may have that much control over you even after a divorce is finalized.

Estate planning is a general term used to describe the creation of certain documentation to maintain and control your financial and healthcare well-being. This could be as simple as a beneficiary designation with a bank account, retirement account, or life insurance policy. Or this can be when someone uses legal documents such as wills, powers of attorney, trusts, and advanced directives for health care to help protect their assets and ensure that their family is cared for following the individual’s death or incapacity.

The documents mentioned above typically are the last thing on one’s mind following a divorce, but that does not change the importance of these documents and what effect they may have going forward. A divorce does not automatically nullify the beneficiaries you previously listed on your accounts or estate planning documents. Although modifying beneficiary designations or updating wills, trusts, powers of attorney, trusts, and advanced directives for health care may feel like a daunting task after the often-grueling process of finalizing a divorce, it is important to tackle this assignment fairly soon following the completion of your divorce. To not act could be devastating.

For example, should you not update your estate planning documents and you become incapacitated after your divorce, your ex-spouse still may have authority over your medical and financial matters. In case of such incapacity, you would rather have someone you trust in such a position of responsibility, not your ex-spouse, especially if you just went through a less-than-amicable divorce.

If you do not amend your advanced directive for health care (this document names another to make medical decisions for you when you are unable to do so for yourself), your ex-spouse still may have the right to make life and death decisions concerning you, as well as may make decisions concerning your future healthcare needs.

If you do not amend your power of attorney (this document names another to make personal and financial decisions for you), your ex-spouse still may make decisions regarding your assets and finances and may have continued access to your financial accounts.

Should you pass away before you update the beneficiary designations on your bank accounts, retirement accounts, and life insurance policies, your ex-spouse still may stand to inherit your assets if they are listed as the beneficiary on your accounts.

Again, this could be the same person with whom you just completed a nasty separation. In most situations that is not the person you want to benefit from passing or to make decisions for you anymore.

In essence, after experiencing a divorce, you must reevaluate your estate plan. You need to update key components of this plan. This can be as simple as changing a beneficiary designation on your bank accounts, retirement accounts, and life insurance policies. What is more, you may need to amend your last will and testament or your trust. Lastly, you may need to create a new power of attorney and/or advanced directive for health care, naming someone you trust to be in such a position of responsibility over you, your assets, and your healthcare needs.

If you just went through a divorce in the past year (or if you have not looked at your estate planning documents since you were divorced), I encourage you to schedule a complimentary consultation with one of our experienced estate planning attorneys at Brown, Barbour, & Thrailkill, P.C. to discuss what steps you may need to take concerning your estate plan post-divorce. Call today at (770) 461-2025 to schedule a free consultation regarding your estate planning needs.

Why is it important to have an estate plan?

Estate planning is one of the most misunderstood legal terms. The phrase “estate planning” leads many people to think only about wealthy families, as most of us do not think that we have an “estate.” The truth is, however, everyone has an estate. Your estate is simply everything that you own, including, but not limited to, your house, automobiles, financial and retirement accounts, and your personal items. Your estate plan, therefore, is a strategic arrangement designed to protect the people and property you cherish the most should something happen to you.

 

People often either think that they do not need an estate plan or they put off creating one until it is simply too late. It is important for people to have estate plans in place so that they have control over how and to whom their assets are distributed after they pass away.  Additionally, it is not uncommon for people to avoid talking about the unknowns in life with the hope that those “unknowns” will never happen. But, as we have all seen firsthand, the unexpected can happen to any of us at any time. We cannot live our lives as if we were ostriches. It is important to note that, having a well-designed and legally enforceable estate plan will not protect you from life’s unknowns, but it can provide you with the peace of mind knowing that your children will be raised by the people of your choice, that your family’s financial future is secure, and that your property is distributed in the manner you desire.

 

With a will or trust, people can designate who will receive their assets and even when they will receive them. On the other hand, if someone passes away without a will, the assets will be probated and passed according to the laws of intestacy. This means that your property may go to an individual that you do not want to receive anything. An estate plan allows you to control the process. Estate plans also may be used to help protect assets if an individual is sued or if they need to go to a nursing home and require Medicaid to pay for it. In addition to wills and trusts, people also want to have advanced directives and powers of attorney in place in case they become incapacitated and are unable to make important medical and financial decisions for themselves.

 

People do not need to wait to plan their estates and to get their affairs in order. By being proactive and planning early, individuals may be prepared in case the unexpected happens. If you have not proactively planned for incapacity or death, what happens to your children and property will be determined by Georgia law, not by you. Plan ahead and keep control of the process.

 

The experienced estate planning lawyers at Brown, Barbour, & Thrailkill, P.C. assist their clients with preparing the necessary legal documents so that their financial and medical requests are followed and that their assets are distributed according to their written instructions. In a nutshell, our lawyers assist our clients and their families by being prepared.

 

When you are ready to get started on your estate plan, I encourage you to schedule a complimentary consultation with one of our experienced estate planning attorneys. Call today at (770) 461-2025 to schedule a free consultation regarding your estate planning needs. The estate planning attorneys at Brown, Barbour, & Thrailkill, P.C. will help you find the best solution for your needs.

Clearing Your Record

Do you have a criminal record? Is it hampering your job opportunities? Or do you just want people to not be able to see it? Whatever your reason, you may be eligible to have what Georgia calls a Record Restriction.

Having a potential employer discover an isolated incident that happened years ago in your youth can be a terrible occasion. First, you may not even get the job, but, if you do, you still will know that your employer knows you did what you did so long ago. Who wants to go through that?

In certain scenarios, you may be able to have your record restricted (what everyone usually calls expunged).

But, first, if you were convicted of Driving Under the Influence, don’t get your hopes up. Absent reopening that case (which is incredibly difficult and must be done within a short time of the case being concluded), Georgia law does not provide for the restriction of a DUI arrest/conviction. However, if you were found not guilty of the DUI, and the arrest is still showing on your record, you may be eligible to have that arrest restricted.

Second, if you were under 21 at the time of your case, you might be eligible for record restriction in Georgia. Likewise, if you completed a pretrial diversion program, you may be eligible to have that arrest restricted.

Next, Georgia recently passed a law allowing people to be adjudicated as a Retroactive First Offender. Under old Georgia law, if you entered a guilty plea to anything, you were not eligible to have your record restricted. However, depending on certain circumstances, if you were convicted of your charge(s) in the past, you might be able to apply to have your case discharged – which means that your conviction will not appear on your criminal history.

Finally, even if you are not eligible to have your record restricted or to be adjudicated a Retroactive First Offender, you are not totally out of options. You may be eligible for a pardon or to have your firearms rights restored.

A careful examination of your criminal history (which can be obtained at any Georgia Sheriff’s Department for a small fee) and of your court paperwork (which can be obtained at the courthouse for a small fee) will allow us to determine if you are eligible for record restriction. The attorneys at Brown, Barbour, & Thrailkill, P.C., will look at all of your paperwork and advise if restricting your record is a possibility for you. Call today at 770-461-2025 to schedule a free consultation. We look forward to helping you with your record restriction.

Divorce Over 50, What Everyone Needs to Know

Divorce Over 50, What Everyone Needs to Know

If you are thinking about getting a divorce and you are fifty (50) years of age or older, you must consider a number of things before you go through with it. Later-in-life divorce is not easy for anyone, but if you go into it already possessing all of the knowledge you can acquire, you will be better prepared for the road ahead. With such knowledge, you will be armed with the information necessary to navigate an otherwise difficult process for your unique circumstances. Divorce is tough on people of all ages, but it can be even tougher for people age 50 and up for several reasons.

First and foremost, if you have lived with your spouse for decades, it can be harder to adjust to living alone and the newfound feelings of separation and loneliness. You may miss the companionship your spouse provided in social situations, as well as intimate ones. Do not worry; it happens to the best of us.

That being said, you can get through it. You need to give yourself time for your emotions to heal and time to adjust to all the changes you now will face. Many people come out stronger and feel better about themselves on the other side of their divorce.

Additionally, if one spouse has been out of the workforce for a while, re-entering it can be more challenging as an older adult. Even if you are able to secure a job, it may not pay as much as you would like (or need). In such a situation, you should consult with a career counselor to determine your strengths and possibly pursue educational opportunities before applying for jobs. You want to find the best fit for you and your new circumstances.

Next, divorce often comes with a heftier price tag than people may expect. Even when you have an amicable situation, you may spend thousands of dollars ironing out the details of the divorce and separation. Your financial situation often times is more delicate than one for a younger individual because you simply have more to lose than they do in a divorce.

Accordingly, it is best to speak with an experienced Georgia divorce attorney as soon as possible to know how your finances will be impacted. The more you prepare for a meeting with a lawyer, the more you will get out of the consultation. Gather all relevant financial paperwork pertaining to bank, savings, credit, investments, and retirement accounts ahead of time to streamline the process. The more information that you can provide to an attorney, the more detailed of an analysis the attorney can give to you about what to expect moving forward.

Finally, many people in their 50s or older will have children in their 20s and 30s. Do not think that your children will not be affected by your divorce just because they are not minors. Some adult children will accept your divorce right away, feeling relieved that the tension and fighting has stopped and that you are happier. Others, however, may refuse to visit until they work out their own feelings about the situation. As much as your later-in-life divorce won’t be easy for you, it probably will not be easy for your children either. It will take time for everyone to adjust to the changes. The same may apply to your grandchildren.

Just as your children may be impacted, many divorced people are shocked by changes in their friendships. Some friendships that have lasted for years suddenly end once you are divorced. Other friends might help you through the divorce, but may not be there for you when it is finished. Some of your friends are friends with both you and your spouse, and just like your children, do not want to have to choose between the two of you. By preparing for this shift, you can adapt to these changes better. Also, you can meet new people through social groups that are not always focused on divorce. You will make new friends who can help you through a different part of life.

Divorce does not mean that your life is over. You can find a new way of living after divorce. You just need to be as prepared as you can.

An experienced and compassionate Georgia divorce attorney can assist you in the process. Call today at (770) 461-2025 to schedule a free consultation regarding your divorce matter. The divorce attorneys at Brown, Barbour, & Thrailkill, P.C. will help you find the best solution for your needs.