Estate Planning, Wills & Trusts
Estate planning describes the process which includes management of the family assets, preservation of wealth, protection from creditors, and minimization of taxes. If you have a well-drafted estate plan in place, you'll ensure that your estate passes to whom you want, when you want, and is carried out in the manner you've chosen.
The process of estate planning often includes the preparation of the following documents, as appropriate: Wills or Will substitutes (sometimes called “Revocable Living Trusts”), trusts to own life insurance policies or other property (Irrevocable Life Insurance Trusts), legal instruments providing for the management of your property upon an incapacitating event (Durable Powers of Attorney for Financial Affairs) and authorizing someone to make critical health care decisions on your behalf if you are unable to make those decisions yourself (Georgia Advance Directive for Health Care and HIPAA authorizations) just to name a few.
Our firm also specializes in more advanced estate planning techniques. Many of our clients wish to establish charitable foundations and/or trusts so that they may give in an organized approach. Advanced planning may also consist of trusts for children who may have specials needs (Special Needs Trusts) or the creation of a Family Limited Partnership (FLP).
Estate Administration
If your family has experienced the loss of a family member, our law firm can assist you with the legal process called Estate Administration that occurs when a loved one passes away. Estate Administration is a general term used to describe the entire process of administering a deceased person’s estate in accordance with a valid Will or Trust, or where no valid Will or Trust exists, pursuant to the state laws of Intestacy.
Ten Reasons to Update Your Estate Plan
- The individuals you have named are deceased.
- New people should be named in your will (e.g. birth, adoption).
- Divorce or marriage.
- New state laws. You need to periodically check to see whether your state has enacted new laws that impact your estate planning documents. More importantly, if you move to a different state, don't assume that your will made in your previous state conforms to the requirements of your new state. Each state has its own legal requirements for making a will.
- Change in guardians, personal representatives, or trustees.
- Children reach the age of eighteen.
- A substantial increase or decrease in the value of your estate.
- The acquisition or disposition of a significant asset.
- You should see an attorney about reviewing and updating your estate plans prior to reaching 701/2 years of age if you have an IRA, 401(k), or other qualified plan that requires you to begin to take distributions at age 701/2. The beneficiary that you designated will have an irrevocable impact on both your and your beneficiary's required distributions.
- The passage of time is reason enough. You should review your will and estate planning documents every three to five years.
Wills & Trusts
Why have a Trust?
All of the property that is inside the trust avoids probate. A trust can provide significant estate tax savings and, in some cases, totally eliminate estate taxes. Trusts allow for professional management of your investments during your lifetime. A trust can protect your assets if you are unable to manage them yourself for some reason and can also be used to collect assets for your beneficiaries upon your death. Trusts are established and drafted based on the needs and goals of each client.
What is a Living Trust?
A Living Trust is a binding legal agreement in which a person called a trustee owns, maintains, manages, controls and eventually gives to others (beneficiary) the property of the person who created the trust (i.e., the trustor). The trustor (creator of the trust ) is able to act as the trustee as long as they are alive. Since a Living Trust is created while you are still alive, it is called a Living Trust.
Trusts are sometimes thought to be only for the wealthy. Not true. A trust is for anyone who would like to avoid the costs associated with probate, avoid paying some death taxes, and provide some limitations on their young children's ability to access money left to them.
What are administrators and executors?
The administrator or executor is the person designated in the trust or will who is responsible for handling the assets in the estate of the deceased person. Because this is a complicated process, usually an administrator retains an attorney to assist and ensure it is executed properly.
What is the difference between a Will and a Living Trust?
A Will does not take effect until you die.
A Living Trust is effective as of the date it is executed (signed) and, therefore, operates during your life and after your death. A Living Trust allows you to manage and control your property while you are living. Therefore, you do not lose the ability to use, control, and benefit form your property after it has been put into the trust. Also, a Living Trust provides for the property placed in the trust to pass to the beneficiaries you have named after your death without any probate proceedings.
What is a Revocable Living Trust?
A revocable trust is a trust that is established and maintained during the creator's (trustor) lifetime and may be changed, modified, and even terminated during the life of its creator.
What is an Irrevocable Living Trust?
An irrevocable trust is established and maintained during the creator's (trustor) lifetime, but it cannot be changed once it's established.
Is a Revocable Living Trust recommended for a single person?
Yes. If you are widowed, divorced, or unmarried, a Living Trust protects your estate. It completely eliminates Probate, while providing you with a unified incapacity plan (Healthcare Directive).
Are there any major disadvantages in having a Revocable Living Trust?
No. You have complete control of all assets in your trust, and you are free to manage your trust in any way. Also, because your trust is revocable, you retain the right to make any changes in it while you are alive and competent.
What happens to my property if I die with a Will?
Please click here to see Georgia intestate succession statutes: http://www.mystatewill.com/statutes/ga_law.htm
What is Probate?
When a person dies without a Revocable Living Trust, a probate of the estate needs to be opened. A will also needs to be probated. The transfer of the deceased person's property (after debts against the estate are paid) is a process administered by a probate court, and these proceedings are called "probating the estate". The court's supervision ensures that your outstanding debts, taxes and claims against you are paid and that your remaining assets are divided among your heirs. These are often long, agonizing proceedings that take eight months to two years. They cost the estate in terms of attorney's fees and costs and are entirely public affairs. Once documents of any type are filed with the courts, they are a matter of public record. Anyone can go to the court house and pull the file on the deceased person to determine what they owned, where it is and what it is worth.
If you are in the midst of a probate right now, an experienced probate lawyer can answer your questions and put your mind at ease. Feel free to call the offices of Clemmons Law Firm to talk to an experienced probate attorney.
What is a Healthcare Directive (a/k/a Living Will)?
Healthcare Directives are included in an Estate Plan. These documents allow you to direct a physician to withhold or withdraw life-sustaining procedures in future circumstances. They are legally binding documents. In fact, many medical facilities ask if a patient has a Healthcare Directive during the admission process. Most, if not all, jurisdictions now recognize a patient's right to make these decisions in advance of a terminal condition, if death is imminent, and /or if life-sustaining measures serve only to postpone death. When acting pursuant to a properly prepared and executed Healthcare Directive, a physician who withholds or withdraws life-sustaining measures is protected from civil and criminal liability. Healthcare Directives must be prepared and executed pursuant to stringent state statues to be valid and effective. If should include authorization for your agent to obtain your medical records under federal and state law. The acronym for the authorization is HIPPA and CIMA.
Why is a Healthcare Directive recommended?
The purpose of a Healthcare Directive is to allow a trusted decision-maker to spare those who are unconscious (or otherwise unable to make decisions for themselves) from enduring unwanted healthcare treatments. In order for you to direct these difficult healthcare decisions, a Healthcare Directive must be in place. Without this document, family members may only be able to guess what you would have chosen for yourself. In the event there is a disagreement over treatment, a physician will typically opt to continue life support. Thus, planning is critical.
Often, sudden trauma or serious illness brings family members together for the first time in years. Heart-wrenching decisions now have to be made. In some families, there may be a natural decision- maker. In others, too many options, too many conflicting values, too much friction, and too little practice in making joint decisions create fierce disagreements that may hurt both the family and the patient.
One should ask himself (herself): Do you trust your family members to make good healthcare decisions on your behalf? Does your family know the quality of life with which you are willing to live? Most people envision a peaceful death at home, surrounded by loved ones. But, 80% of us will die in long-term care facilities or hospitals. In these settings, many modern healthcare treatment options are readily available to prolong a life. Unfortunately, when a patient can no longer weigh these options themselves, difficult healthcare decisions falls to distraught family members. A Healthcare Directive avoids this conflict. It is a legally binding document that states what end-of-life treatment you want.
What is a Durable Power of Attorney for Property Management?
A Durable Power of Attorney (DPA) is a document that when properly executed will allow an agent to act on your behalf. A DPA for property management is a simple and reliable way to arrange for someone that you trust to make your financial decisions should you become unable to do so yourself.
If you do not have a DPA, a court proceeding will be required to give your loved ones authority over your financial affairs. This can be an expensive and public process. Many married couples think that they do not need such a document because everything is in both names. The trust is that your spouse has limits on his/her ability to deal with affairs, particularly on the selling of property owned by both of you.
