PROBATE IN GEORGIA WITHOUT A WILL
Georgia probate
laws and procedures exist to help an individual accomplish the goals
which that person considers to be important. Post-death goals typically
include guardianship of minor children, payment of debts, and distribution
of assets, including businesses and jointly owned property. Also
a factor in estate planning may be the minimization of estate, capital
gains, or income taxes. Many people have strongly defined wishes
but do not take the steps to make a Will. Some feel that they don’t
have enough ‘stuff’ to bother with. Others don’t find the time during
life to make the necessary plans.
At any rate,
when a person dies without a Last Will and Testament that person
is called "intestate." The statutory laws of Georgia would
be applied when the person is a resident of a Georgia County at
the time of death. Residency is not mere presence (such as being
an inpatient in a hospital) but having a usual and customary place
of abode. Placement in a nursing home where the admission is on
a temporary basis would not typically change the ‘legal residence,’
however if the patient is to remain there for the balance of his
or her projected lifetime, the legal residence has probably changed.
When the appropriate
county for probate has been determined, then some heir or creditor
can initiate a request that the estate be probated. If there is
a Last Will and Testament then it is required to be delivered to
the Court. When a person holds custody of a Will and does not deliver
it up they may be committing a criminal act called a ‘misdemeanor.’
But where there is no Will or the document cannot be found despite
diligent effort, then the Court is asked to probate the estate as
an intestacy. The person who is appointed by the Court to handle
the details of the estate is called the ‘Administrator or Administratrix’
[depending on the gender of the person appointed]. If there is a
Last Will and Testament, then the designated person is usually an
‘Executor or Executrix.’ Usually the administrator is the next of
kin but that may be varied based on the Probate Judge’s determination,
and could be a person who is appointed by the Court as a disinterested
party – particularly in situations where the heirs disagree.
An administrator
is required by law to post a bond for the ‘personal’ property. Georgia
law usually assumes that real estate is safe but that personal property
(which is basically all physical assets which are not real estate)
could be improperly handled. Therefore a bond from a surety [insurance]
company is required unless the Probate Judge finds reason to order
otherwise. Most well crafted Wills waive the requirement of these
statutory procedures, but without a properly written waiver, the
Court must require: Inventory, appraisals, annual (or periodic)
returns, and reports. Thus, the Administrator has to list the assets,
define their value and report through the court what is anticipated
to be done with them. Then Court Orders are required so that assets
can be sold, mortgaged, distributed, or otherwise removed from the
Estate. Obviously, this is a more time consuming and costly procedure
that mere probate of a simple Will.
In an intestacy,
the Surviving spouse does not inherit the entire estate. He or she
will get a child’s part, but not less than a certain fraction. If
any of the decedent’s children are still minors, they and the surviving
spouse can ask for special protection from the probate court called
"Year’s support or twelve month’s support." If the Court
approves the request for this post-death spousal or minor support,
then that amount is paid regardless of the amounts owing to creditors.
Thus, by use of year’s support awards, an estate which has more
debts than assets can still pass assets to surviving spouse and
minor children and the creditors simply remain unpaid.
Disadvantages
of Administration rather than probate with a Last Will and Testament
include
The
administrator has no right to make charitable gifts or to forgive
the collection of debts, for example, even though the deceased person
may have sincerely wished to have these acts occur.
Finally,
it is rare, but occasionally a death may occur as the result of
someone’s negligence or wrongdoing – such as a vehicle accident.
Without a proper Last Will and Testament, the Probate Court must
empower the administrator to maintain a lawsuit and must coordinate
on the terms of settlement. Occasionally an estate must be probated
merely for the purpose of pursuing these claims. Use of techniques
such as joint ownership of assets so that ‘probate is avoided’ can
merely leave the administrator without any cash with which to take
necessary actions rather than accomplishing the elimination of Court
involvement.
Crafting
of a proper estate plan should consider potential complications,
the relationships of family members, tax planning, asset control,
and such other issues so that passage of responsibility and ownership
does not become a separate level of grief and regret. Preparation
of a Will may seem like an unwelcome expense but it can save the
estate literally thousands of dollars in potential probate administrative
expenses.
Georgia's
General [Financial] Power of Attorney
By
Lynn M. Swank
Any Power of Attorney is a statement by one person [the 'principal']
allowing another person [the 'agent'] to take actions (or prevent
them) with the same authority that the principal would have if he
or she were present in person. For example, if a Husband were traveling
out of the country he could leave a power of attorney with his Wife
so that she could negotiate and sign a contract to sell their house
in his absence. When she signs the form in his name, he is bound
legally to perform under the contract. Other times when Powers of
Attorney are typically needed are during periods of sickness and
mental incompetence, as well as absence.
Durable" in the name of Durable Power of Attorney means that
it will continue in effect regardless of the medical condition of
the Principal. In a power of attorney there is a "principal"-
the one who gives the Power of attorney, the "agent" -
the one who receives the authority. At common law, the authority
of an agent was only as good as the principal. If the principal
was in a coma, so was the agent from a legal standpoint. Durable
means the authority continues until expiration occurs, it is revoked
or otherwise terminated. Death stops the authority under a power
of attorney because then the executor or administration of the estate
is the decision maker.
You can have a financial power of attorney, one limited to a specific
act (such as the sale of a house), or one which designates an agent
for making medical decisions if you are not able.
Many states have forms for these durable powers of attorney. The
Georgia durable power of attorney for health care is reproduced
on this website as well. I encourage people to read, print it out,
and use it. If you are from another state you would need to verify
the format which your state requires.
Not everyone should use a general power of attorney, and not every
power of attorney should give total authority. There are thousands
of ways in which Powers of Attorney can be assembled. Because of
the differences in structure of the text in each form, the Georgia
legislature enacted a law which contains a form for general use.
This form provides a 'smorgasbord' of choices which allows a person
to designate one or more functions without giving all of them. By
initializing a paragraph, an individual can authorize that specific
power. Omitting other paragraphs allows the principal to retain
control over other activities. Of course, in many cases the maker
of this type of power of attorney gives each and every privilege
to the person they designate. That is a personal choice - how much
authority and who to name - this is a matter of trust.
Who do you name as your agent? Despite
the term used "power of attorney," there is no need to
involve an attorney-of-law as your agent. Instead, the agent should
be a person who you know well. This person can be a member of your
family, a friend, a business associate, or anyone of your choosing,
however it should be someone who is willing and available when needed.
When you select this person, you should advise him or her of your
intentions and wishes. Very few agents have psychic powers and point
of use is not a time for debate about what you would have wanted
done.
Must the Power of Attorney be signed in the presence of a Notary
Public? Only
if you wish to give authority which relates to real property, stocks
or investment documents, or certain other types of contracts. The
document itself instructs when witnessing by a Notary Public is
necessary.
How is the Power of Attorney terminated or stopped? When
granting any power of this type, it is suggested that only one or
a limited number of copies be signed. The Grantor can terminate
the authority by notifying the Agent of the termination, but it
is also desirable to recover the originals so that they can be destroyed.
Obviously a small number is more desirable than a large group.
Why shouldn't everyone grant a general power of attorney, at all
times, for general purposes? The
main reason is that these documents are subject to misuse. Parents
have been stripped of their homes and property because an adult
child believes that he or she better understands what needs to be
done. Prior to separating in a divorce situation, one spouse could
use it to strip the other bare of assets. Agents have been known
to make use of the Power of attorney in a personal emergency and
'borrow money' without the knowledge of the principal, or take other
action which is not known to the principal. The documents is very
useful but also potentially dangerous.
Click
here for the text of the Power of Attorney as provided by Georgia
statute:
Estate
planning, Custody January 2000
If
the other Parent of my Child is still Alive, why should I designate
a Guardian for the Child in a Last Will and Testament?
By Lynn
M. Swank
In
modern times it is almost uncommon to have a traditional ‘nuclear’
family – where Husband and Wife have been married only to each other,
they still live together, and they have all their children by each
other. Instead, for estate planning, it is often the case that a
mother or father will have sole custody of a child where the other
parent is not in the household. Or one parent has shared legal custody
but primary physical custody is in the other parent. Some parents
without custody are intensely involved with the day-to-day life
of the child but others, voluntarily or not, may see their child
rarely or not at all.
The
custodial parent will generally understand that when he or she dies,
‘the law’ requires that the other legal parent automatically gets
custody of the child. That, in general, is true as a starting point.
For that reason, some parents will assume that in the event of death,
there is no reason to designate anyone as guardian to care for the
child.
In
reality, every parent of a minor child should have a provision in
his or her Last Will and Testament to designate at least one person,
and hopefully a series of choices, to care for and raise the child
until the age of majority is reached. A separate provision may be
needed for the money which may be left for the benefit of the child
but that person (a Trustee) is not necessarily the same person as
the Guardian who takes the child into his or her household. A Trustee
should be able to invest and supervise money issues. A guardian
is a hands-on parent.
So,
why should a guardian be designated if the law favors the other
legal parent of a child? There are several thoughts which come to
mind:
The
other ‘non-custodial’ parent may have died or become legally
incompetent at the point of death of the custodial parent.
If
there is not a close relationship between the child and the
surviving legal parent, it may not be in the child’s best interests
to be torn from the home at the same time as losing a mother
or father to death. How fair is it for a child who has not seen
his non-custodial mother or father for a number of years to
be suddenly told that he must give up all friends, school ties,
home and nurturing environment and go live with this stranger?
The
‘non-custodial’ parent may not be fit to raise the child.
There
may be other siblings who have been raised with the child who
have other parents, yet it is best for the children to remain
together.
The
surviving parent may not come forth to ask for the child or
make arrangements. Some men and women who are biological parents
may have no desire to actually be parents, particularly after
years of separation from child-raising.
There
may be a step-parent who has been the equivalent to a real biological
parent who is in the home and emotionally prepared to continue
raising the child.
What
if by Will, a parent designates someone other than the surviving
legal parent as guardian of the child? If the legal parent comes
forward and is fit, then the designation will be a gesture without
legal effect. If there is a need, however, and the legal parent
should not be the person physically raising the child, then by designating
a guardian you are allowing a person you trust to intervene to challenge
the placement and even bring a court action if needed. This is especially
true because at present Step-parents have no legal rights, even
if they have been instrumental in raising the child for years.
Why
name more than one? Because the first guardian you designate may
be in the midst of a personal crisis at that time you die. If that
person is not then able (due to their own death, other health problems,
economics, marital crisis or otherwise) to care for your child,
then it is only reasonable that you voice your second choice. The
younger your child is at the time of your death, the more likely
that conflicts or changes may arise where your designated guardian
should have the chance to say ‘no’ if necessary.
Choosing
a guardian for your minor child or children is very important and
can legally be done through your Last Will and Testament. Failure
to make a choice can leave your child at the mercy of a Court system
which favors blood relatives on the basis of the nearness of the
relationship -- regardless of the qualifications. It is not unknown
in Georgia in a contest between relatives after the death of a mother
or father (where no Will names a guardian and no other legal claimant
comes forward) for the Judge to select the oldest living blood relative
(a grandparent or great-grandparent) even where there is some more
able sister or brother with small children of their own who could
be raised with the grieving child. This is a circumstance where
planning ahead is more complicated but more imperative than merely
setting aside money for the child’s potential college tuition.
Writing
the words which make up a Last Will and Testament may be a simple
procedure, and one which can be accomplished with software or ‘fill
in the blank’ forms. However, the decisions needed to understand
and plan for the unique personal choices which should be reflected
in a Will may be best handled with the guidance of a qualified professional.
Any person with a small child or an aged parent may wish to update
his or her Last Will and Testament so that the family, as
opposed to the money, is well cared for in the event of a
death or catastrophe.
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