Planning for distribution of your property and naming the proper person to take care of business after your death is not something that most people look forward to talking about. However, it is important to consider what you can do in your Will, but perhaps more important is to consider what happens if you die without a Will. Many people think that everything goes to the husband or wife at the time of death, and this is only true in Georgia if you have no children. Should you die without a Will, your spouse will get a minimum of one-third of your property, with the rest going to your children in equal parts. (This includes children from a prior marriage). This can become problematic in many situations.
A common example we see is when husband and wife have owned a house together for many years with the assumption that it will become property of the surviving spouse upon the death of the other. The surviving spouse is often shocked to find out the participation of all the deceased spouse’s children is required to transfer title to the home to his or her name. When all of the family members get along, this can usually be accomplished with only the additional expense for executing and recording deeds, in addition to a few routine Probate Court filings. But when there are children from a prior marriage or if children from the same marriage are uncooperative, this can result in the potentially disastrous consequences of the surviving spouse having to buy the children’s interest or long and expensive litigation in the Probate Court, just for the surviving spouse to obtain complete ownership of her house.
If any child is under 18 years of age upon the passing of a parent, then often there must be a court appointed conservator/guardian of that child’s property. Bonds must be posted and the distribution of the child’s property will be supervised by the Court. This causes additional proceedings with the Court, court costs and delays. Additionally, your spouse will own any property along with the minor children and their guardians, and refinancing or selling property becomes very cumbersome in that it must be done under the supervision of the Court. Also, in the event both parents pass without naming a testamentary guardian in their Wills, a court proceeding will be necessary for a judge to decide who your children will live with.
A much more efficient way to handle matters after your death is to have a properly drawn Will which can state exactly how you want your property to go, and if there are minor children you can designate the person who you would like to be their guardian in the event both you and your spouse are deceased. Additionally, if any children are minors, then their property can be held by a trustee until they reach the age you think is proper for them to have the property.
In addition to having a Will, there are two other documents which a proper estate plan includes, and they are (1) a general business power of attorney to your spouse or to whomever you designate and (2) an advance directive for health care which includes the living will and a health care power of attorney. With these three documents, you can designate how you would like your property to be distributed and reduce a great deal of confusion and costs in settling your estate; provide for someone to act on your behalf in business matters while you are alive, and select someone to make health care decisions for you if you cannot do it yourself.
One important aspect of a Will, or any of the other two documents mentioned, is that under Georgia law, changes can be made at any time and there is no restriction during your lifetime on how you can handle your own property.
It is important that you speak with your attorney to get these documents in place, and the peace of mind in knowing that you have provided for your family is a gratifying accomplishment.