Articles Posted in ESTATE PLANNING

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In my Atlanta estate law firm, our lawyers have a general rule in estate planning in Georgia is that every person should make a will. Unfortunately, it seems that the majority of the general public does not feel the same way and most people die without leaving a will expressing their last wishes. Many people think they don’t have anything to leave; but, more often than not, they are wrong. Some people think that you have to have children or be wealthy, suffering from a terminal disease, or elderly before it is time to make a will. There are even people who are afraid to sign a will and believe that it signifies a final act and others think that wills are written in stone and cannot be changed so they hold off making a will because they can’t decide how they would like to distribute their estate. It is a much better idea to have something in place and a will can be changed at any time. The execution of an individual’s will is a very emotional moment for some; but, if you keep in mind that it is a tool available to you to ensure that your assets are distributed in accordance with your wishes, then perhaps you can see it as a tool to ensure peace of mind.

Even if you do not have any assets, you should have a will in place in the event of your death; after all, none of us know the exact circumstances that will occur to cause our death. You might win the lottery and die from the excitement. In that event you may go from owning nothing to being very wealthy and leaving a large estate. Should you die in an accident, your estate can be greatly increased by the proceeds of a wrongful death law suit.

Your will is also a vehicle by which you can name the persons or financial institutions you wish to act as the guardians of your minor children and conservators of their estates. You can determine the terms of any trusts that may be established for their benefit.
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As a probate attorney in Atlanta, Georgia (and the surrounding Buckhead, Sandy Springs, Marietta, North Georgia, and Metro Atlanta Areas), who specializes in Atlanta, Georgia, Probate Litigation, my clients frequently ask how they can avoid the Georgia probate process altogether. There are several reasons to want to sidestep probate, including speed of distribution of the assets to beneficiaries and the cost of the process, in both time and money. Privacy may be an issue as well. Probate proceedings are a matter of public record, so non-probate asset classification provides the estate and beneficiaries with anonymity. Only non-probate assets that contractually name a beneficiary can escape probate, but with a little planning many assets can be classified in this way. Common examples of non-probate assets are as follows:

Common examples of non-probate assets are tax-deferred retirement accounts, like 401(k) and IRA accounts, and proceeds from life insurance policies. Bank accounts can also be classified as non-probate assets when set up as Payment on Death Bank Accounts. The same can be done by setting up bonds, Stock and brokerage accounts as Transfer on Death Securities. Under either of these methods, the beneficiaries have no interest or access to the assets while the owner is alive and ownership of the assets is only transferred to the beneficiaries upon death. To protect real estate holdings or financial accounts, they can be set up with Joint Tenancy with Right of Survivorship. This structure is common between married couples and automatically transfers the assets to the survivor when one of the owners dies.

Living trusts are another effective way to circumvent the probate process. A Georgia revocable living trust allows property to transfer directly to the beneficiaries named in the trust. Once this type of trust is set up, title to the assets passes to the trustee who has the job of managing the trust during the life of the grantor. In Georgia, the grantor can also be named as the trustee. As trustee, the grantor has free access to the assets while alive and may sell, trade, buy, liquidate or donate the assets. A common misconception is that once assets are transferred into a trust, they are protected against all claims from creditors. Yet, because the assets are under the total control of the grantor, the trust does not stop creditors from pursuing the assets. Nevertheless, it is more difficult for assets to be taken from a trust, as creditors in Georgia must file a petition in court to do so. Another advantage of Georgia revocable living trusts is that the grantor can change the terms of the trust or reclaim title to the property at any time. Upon the death of the grantor, a successor trustee distributes the property directly to the beneficiaries after death of the grantor.
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As an Atlanta Lawyers; Especially Atlanta Will Challenge Lawyers, I have seen the number of cases on the rise. As an Atlanta, Georgia Probate Litigation lawyer, I have represented many clients in different types of will contests. Especially common are the cases that involve undue influence in the writing of wills. When undue influence is found to have played a role in the writing of the will, then the court can determine that the will is null and void.

Undue influence occurs when an act takes place that overcomes the victim’s free will. Undue influence is most likely when there is a confidential relationship between those involved and when one of the parties is of greater mental capacity. The confidential nature of the relationship and ability of one party to exert influence over the other party due to a superior intellect are the key factors that allow the manipulation to go unnoticed.

Many cases of undue influence occur between parents and children. When a close relationship exists between one child and the parent, it is possible for the child to manipulate the parent into signing a Georgia will that favors that particular child. It is also possible for the influence to come from outside the family, for example from a hired caregiver who spends large amounts of time with the elderly person.

When faced with a case of undue influence regarding a will, the Georgia probate court will examine the mental state of the deceased at the time that the will was executed. Evidence of mental or physical coercion is required. Because direct evidence is difficult to collect (since the victim is deceased), the courts will rely on circumstantial evidence for proof. The court will try to determine if:

1) the decedent was easily influenced, due to age, health or general mental state

2) the person suspected of undue influence had an opportunity to coerce or manipulate the victim

3) the person suspected of undue influence had the motive or disposition to influence the victim

4) the person suspected of undue influence was actively involved in creating the will

5) the will appears to have been influenced


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As an Atlanta, Georgia Guardianship and Conservaorship Lawyer, I want to emphasize the importance of evaluating a Georgia Probate Courts’ Guardianship and Conservatorship Requirements in determining if a proposed Georgia Guardian and/or Conservator is a suitable to act in the Best Interests of a proposed ward.

Under Georgia Law, to serve as a Georgia Probate Court Appointed Guardian and/or Conservator of a Proposed Ward, such person must have the following qualifications:

1. Over the age of 18 years of age;
2. A Georgia resident; or a non-resident who is:

(a) related by lineal consanguinity to the ward;
(b) a legally adopted child or adoptive parent of the ward;
(c) a spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone elated by lineal consanguinity to any such person; or
(d) the spouse of a person otherwise qualified above; and

3. Having been convicted of a felony usually precludes you from being a guardian in Georgia. However, new trends allow the judge to evaluate the felony and its circumstances to determine whether the proposed guardian would do a good job in caring for the ward. By example, a felony conviction for marijuana possession a long time ago may be looked upon by the Georgia County Probate Judge as a learning lesson. And, since it did not involve stealing (or another crime of moral turpitude), then the proposed guardian may be determined by the Georgia County Probate Court to be a safe person and able to care for the ward in a high-quality manner. Lastly, this is true if the guardian and ward are closely related and/or have a close, respectful, and honest relationship.

Moreover, a Georgia county probate judge may give a felon who petitions the court to be guardian of the ward if they are related. This new trend shows the County Probate Judge’s discretion in finding a qualified person to take care of the ward.

A Petition for appointment of a Georgia guardian and/or Conservator for the proposed ward will be filed with the GA County Probate Court in which the proposed ward is domiciled. This Petition requires either two Petitioners to sign the document or one Petitioner and the completed affidavit of a physician or psychologist licensed to practice in Georgia or a licensed clinical social worker, who has examined the proposed ward within 15 (fifteen) days prior to the filing of the Petition. In, Georgia, unless the alleged incapacitated person is indigent, the Petition must submit with a check to the GA County Clerk of Court for the filing fees. The filing fees vary slightly per each separate GA County Probate Court.

Upon the filing of the Petition, the GA Probate Court will decide whether it finds grounds to accept or deny the Petition. If the Petition is denied, the GA Probate court will dismiss the Petition. If the Petition is accepted, the Georgia Probate Court will instruct the proposed ward be served by the GA County Sheriff’s Department with a copy of the Petition, a Notice to Proposed Ward of Proceedings to Appoint a Guardian and/or Conservator, a copy of a Notice of Attorney or Guardian ad Litem that has been appointed to represent the proposed ward. Additionally, if no evaluation has been done, the GA Probate Court will order and evaluation wherein a date, time, and place for the proposed ward to meet, and be examined, by court appointed physician or psychologist licensed to practice in Georgia or a licensed clinical social worker. Following the evaluation, a written report will be filed with the court and an Order and Notice of Hearing will be issued. At the hearing, the Probate Court Judge or an Administrative Judge appointed by the GA Probate Court will conduct a formal and confidential hearing and listen to all interested parties and make a determination whether the proposed ward lacks sufficient capacity to make or communicate significant responsible decisions concerning his/her health or safety and/or financial matters.

If the proposed ward is declared “incompetent,” some or all of his or her rights are taken away from him or her and a Guardian and/or Conservator is appointed. A guardian is usually a family member; however, there are professional guardians who perform the duties of a Guardian for several different wards and usually charge an annual fee for their services. The court will issue Letters of Guardianship to the guardian, which serves as his or her court appointed authority to make decisions on the ward’s behalf. The guardian is answerable to the court and must file an initial plan profiling his or her plan for the ward’s care and each year on the anniversary of the issuance of the guardians Letters of Guardianship, he or she must file an annual plan with the GA Probate court.

Any person who is thinking about becoming a Guardian and/or Conservator should engage the services of an experienced Georgia Guardianship and Conservatorship lawyer to guide them through the complicated process of establishing a Guardianship and/or Conservatorship in GA and comply with the preparation of the annual reports due to the GA County Probate Court regarding the well-being of the ward. In addition, any person who has issue with, or who wishes to contest the Petition of a Guardian and/or Conservator for a proposed ward should contact an experienced GA probate attorney. This is also true for the proposed ward as it is can be the case that the proposed ward does not feel they need to have their rights taken away from them and wish to contest these matters themselves. Moreover, it is oftentimes the case that persons will establish a Guardianship and/or Conservatorship over a proposed ward to gain access to the proposed ward’s assets. Moreover, it is often the case that the Guardian and/or Conservator does not have the best interest of the proposed ward in mind and such Petition should be contested.
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Atlanta Attorneys know there are many tools that can be used to facilitate the transfer of assets in an estate plan. Holding property jointly (in two or more names) is one method that has advantages and disadvantages. Joint ownership of real estate, bank accounts, and other property is common because assets owned jointly with rights of survivorship do not become assets of the decedent’s estate. These assets do not pass through probate to be distributed but are transferred by operation of Georgia law and automatically pass outside of the decedent’s estate to the surviving owner(s). When joint owners are spouses, this set up can be ideal. Because there is no delay in the transfer of property under joint ownership, the surviving owner can immediately take control of the property. This is especially useful if access to the property is urgent, time-sensitive, or when financial issues need to be resolved immediately upon the death of the decedent joint owner.

Joint ownership does have its downsides and should be carefully considered before being implemented in any inter vivos circumstances or estate plan. For instance, one scenario where it can be unwise to set up property ownership jointly is when a parent and child are named as joint owners. Problems can arise if the parent has other children who are not included in the joint ownership of the property or the child involved in the joint ownership is financially unstable. With multiple siblings, even if the Georgia will specifies that the joint property should be divided evenly between all of the children, the joint ownership property is not part of the estate. Thus, the surviving owner is not obligated to split the property and distribute it per the Georgia will. This is because the joint property transfers to the surviving owner(s) by operation of law. Thus, the property never becomes part of the estate and therefore is not subject to the laws of intestacy or distribution per the terms of the Georgia will. Also, if the joint owner is a child with financial issues, the parent can lose the property if the child’s creditors endeavor to collect outstanding debts. The child’s joint ownership interest can also be threatened if the parent has financial issues, which cause the parent to declare bankruptcy. This can oftentimes be the case if the parent has significant medical expenses or other expenses associated with growing older and not having earned income.

A Georgia Estate Planning attorney can provide other alternatives to placing property in joint ownership. One good alternative is to draft an effective estate plan that specifies how the property will be divided under a number of possible scenarios. Without a crystal ball we cannot foresee which scenarios are most likely, but they can include illness, remarriage of a spouse, bankruptcy, etc. With such variability, it is prudent to draft a detailed estate plan that can factor in multiple circumstances. Such an estate plan is especially effective for larger estates or in situations where a dispute between heirs and/or beneficiaries may be inevitable. Estate planning under such scenarios often involves the use of revocable and irrevocable trusts and annual gifting. Implementing these types of estate planning vehicles can be complicated and it is necessary to have an experienced estate planning attorney assist you.
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Atlanta Lawyers, Social Workers, Adult Protective Servicesand other persons and/or entities that focus on protecting (or preying upon) the older and aging population of the United States, know it is a common for most families to have an elderly parent who is independent enough to live alone, but who is unable to manage household expenses. In the interest of helping the senior maintain independence for as long as possible, a son or daughter’s name is frequently added to the senior’s bank account to facilitate payment of the expenses. In addition to paying any bills from the account, the joint account holder will be able to keep an eye on the outflow of monies and perhaps oversee any transactions that the senior does make. How the account is set up when the additional person is added, though, can have an impact on the outcome of any Georgia probate proceedings upon the death of the parent.

When creating a joint bank account, inserting the word “or” between the names of both account holders is a simple way to allow for either party to process transactions independently. While this facilitates the payment of expenses as described in the previous example, if one account holder dies, it also allows for all funds in the account to pass to the surviving account holder. When the second person is a spouse or the only surviving relative, this may not pose a problem. But when there are other heirs, a dispute may take place if the heirs feel that they are entitled to a portion of the funds. The question of who receives the funds will be addressed during probate proceedings, as the true intent of the deceased is investigated. Most commonly, the proof of how the money will be divided up is found in the will. But with no will, or if the will does not clearly state how the funds are to be allocated, the court will needs to determine if the second account holder was added only for the sake of convenience or if it was the true intention of the deceased to gift the funds to the second account holder.

When the word “and” is used between two names on a joint bank account, no transactions on the account can be processed without the other party’s signature. This is common in Georgia business partnerships where the inflow and outflow of funds needs to be closely monitored. Under this scenario, in the event that one account holder dies, half of the funds will pass on to the estate of the deceased and half of the funds will pass to the surviving account holder. This set up is not common in family dealings and does not usually cause a dispute during Georgia probate proceedings.

The types of joint account disputes involving family members can be avoided by asking an experienced and qualified Georgia probate attorney to set up a will that clearly defines your desired intentions. Keep in mind that while probate proceedings resolve issues on these difficult and emotionally charged cases, your heirs are the ones who will live not only with the outcome, but also with the consequences caused by any drama that plays out during the proceedings. With the proper planning you can eliminate this turmoil and create a positive experience for your loved ones.
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In my Atlanta, Georgia Probate Law firm, I have helped countless clients involved in estate issues and Georgia probate litigation. While there is no substitute for qualified legal counsel, there are excellent resources online to help individuals understand the complex legal landscape of probate proceedings and estate administration. I often recommend that my clients use these resources to get an initial understanding of this area of law and the unique requirements of the Georgia probate process.

Georgia has a useful website (www.gaprobate.org) that focuses on areas handled by Georgia’s Probate Courts, such as estate planning and marriage licensees. At this website you will find a broad array of information and tools, such as standardized downloadable forms and a resource to locate the Probate Court in your area. The Administrative Office of the Courts of Georgia also has a website (www.georgiacourts.org) that provides standardized forms, information and links to state and national legal agencies and organizations. A third website run by the IRS (www.irs.gov) also provides valuable information and I recommend that my clients use it when doing research on probate and taxes.

These three sites should always be used to download any Georgia probate forms. Other websites may have free downloadable e-forms, but these official websites will have the most up-to-date forms and instructions. Keep in mind that the staff and clerks at the offices of these websites are very knowledgeable, but they cannot dispense legal advice. It is critical to secure legal counsel from an experienced Estate Administration and Probate Attorney for all probate matters. The complexity of the Georgia probate process can derail the administration of estate assets and cost beneficiaries and heirs valuable resources.

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As Primary Georgia Trust Litigation Lawyer in an Atlanta Trust Litigation Law Firm, beneficiaries named in a Georgia trust are entitled to understand the terms of the trust and what the trust will provide to them, both present and future. This can be critical to the lives of surviving minor children, spouses with no other source of income, or incapacitated individuals who must now rely on the trust to take care of their medical and living expenses. Trustees are in charge of managing and protecting trust assets in a transparent manner that upholds the trustee’s fiduciary responsibility to the beneficiaries.

One of the important fiduciary duties of Georgia trustees is to ensure that assets and property held by the trust are properly accounted for and reported to the beneficiaries. This is the foundation for trust in the trustee/beneficiary relationship. Some trust documents outline the procedures that beneficiaries must follow to request accounting information. In cases where the trust does not provide the procedure, Georgia law regulates when and how to request an accounting of trust assets. An experienced Georgia Trust litigation attorney can help beneficiaries better understand the accounting information they are entitled to and how to obtain it from the trustee.

Part of the duties of a trustee is to follow generally accepted accounting procedures (GAAP) for the recording of operating transactions. While it may be best to use an accountant to handle the accounting requirements, trustees can do this themselves. The trust’s assets and liabilities must be recorded. Assets can include real estate, stocks, bonds or any other property or asset that the trust owns. Liabilities are classified as debt and should be recorded at current values. Liabilities can include taxes owed, accounts payable or deferred tax liability. Expenses should also be recorded in a timely manner. Trust expenses can consist of the trustee’s salary, investment fees, office supplies, rent, and any applicable utilities. Moreover, an experience experienced Atlanta Trust Lawyer can help you determine if your Trustee is investing according to the Prudent Investor Rule and not putting your trust assets at risk.

Finally, the trust’s revenue must be tracked. Revenue can be generated when bank accounts held by the trust accrue interest income, stock and mutual fund portfolios earn gains, and property is sold. In the end, the timely and accurate recording of assets, liabilities, expenses, and revenue will allow the trustee to easily create documentation that shows beneficiaries the total value of the trust. Failure to provide this information to beneficiaries is a breach of fiduciary duty and can result in the removal of the trustee.
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As an Atlanta, Georgia Estate Attorney, I am always interested in helping my clients develop an optimal estate plan that will effectively manage their assets. Many of my clients come to my office already convinced that they need a Georgia living trust versus a will. People perceive the Georgia probate process to be lengthy and costly process, in both time and money. This perception is oftentimes based on the probate process in general. It is true that many states have a probate process that is exceedingly expensive and complicated ( Florida would be one state I would put in this category). However, the probate process in the State of Georgia would not fall into the category of expensive and complicated when you are being represented by an experienced Atlanta, Georgia probate lawyer.

The attraction of a Georgia living trust is that the assets named in the trust are not considered part of the decedent’s estate and therefore do not go through probate. To the contrary, assets that are subject to a testamentary devise, bequeath, or bequest under the decedent’s will, would be part of the decedent’s estate and would go through probate. But as I advise my clients, probate can be an efficient and useful process. Wills should be structured properly with the aim of mitigating conflict between the parties involved. Conflict and the resulting mediation or litigation is what inevitably causes the Georgia probate process to potentially become expense and time consuming. Nevertheless, oftentimes a form of dispute resolution or estate litigation in probate court is necessary. Sometimes a will is the right option when a living trust is too expensive for the benefit it provides or if conflict is inevitable between heirs. What is more, one of the greatest benefits of the probate process, is the Georgia probate court’s supervision over all parties involved in the decedent’s estate administration. In fact, the estate lawyers in our Atlanta, Georgia probate Law Firm, which specialize in Georgia estate administration and litigation, have found probate court oversight extremely beneficial when there are contentious heirs and/or aggressive creditors.

Different from a written document like a will, a living trust is a legal framework into which assets are transferred. Assets in a living trust can include cash, bank accounts, investment accounts, stock, land, homes, vehicles, collectibles and any other personal property. The terms of the living trust spell out to whom the assets will be distributed upon death and because the assets are no longer in your name, but in the name of the trust, they will not have to go through probate to be distributed. Besides posthumous probate avoidance, another important advantage of a living trust comes into play if the individual becomes unable to manage independently due to sickness or disability. In this case, a previously named successor trustee can take over and handle certain matters pertaining to the living trust.

The naming of trustees is obviously critical when setting up a living trust. Many people name themselves as the sole trustee and also name a series of successor trustees (in case one or more named trustees are not able to serve when needed). Either a person or an institution can be named as successor trustee. Spouses setting up a living trust frequently name themselves as co-trustees, although any two adults can be co-trustees. One of the benefits of naming co-trustees is that upon the death, resignation, or incapacity of one of the co-trustees, the surviving co-trustee can continue to administer the trust. Ultimately, the law gives trustees the right to complete control over assets in a living trust. For this reason it is critical that only the most trustworthy people are named as trustees. It is important to remember, all Georgia trustees must adhere to rigorous fiduciary duties imposed under Georgia law, whether they are an individual or entity. This is the same Georgia fiduciary duty imposed upon executors, administrators, and personal representatives.
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As Atlanta, Georgia, business attorneys who also practice complex trust and estate planning and will, trust and estate litigation, we recognize there are numerous lawyers and companies who want to help you plan and protect your estate assets. These same lawyers and companies also want to help you set up your business succession planning and assist you with your estate planning. However, as business assets become increasingly intangible and more difficult to define, the estates of persons owning and having an interest in these businesses become more complex, difficult to plan, probate and administer. If these estates are not planned properly, it is quite possible these estates could end up in litigation.

As businesses, assets, and information have become increasingly digital, intangible, and available solely on-line, it is important to choose Atlanta business lawyers who understand your “intangible” business assets, how to protect them, and how to formulate effective trust and estate planning for these assets. Moreover, you not only need trust and estate attorneys, you need these same attorneys to be Georgia business attorneys well-versed in complex business matters as they relate to intellectual and technological property, copyright and trademark issues, and other potentially intangible property.

For example, any number of lawyers might be able to draft a basic will, and this may be fine for someone with fairly limited and straightforward “traditional” assets. If everyone knows you have accounts at a local bank and brokerage house and you keep your account documents on file and in physical form, it may be easy to ascertain what is in your estate.

On the other hand, consider the following:

• What if you have accounts at one of the “on-line only” banks?

• What if all your account statements are e-delivered?

• What if you have a second business selling goods on e-bay, or if you have a business or assets in a “virtual world,” such as Second Life?

• Who has your login information and passwords to these accounts?

• How will anyone determine what assets you have, or where? How will these assets be valued and by whom?

• Even if you do not have these things now, can you guarantee that you will not have them before your beneficiaries or heirs need to administer your estate?

Thus, it is increasingly important to consider not just your tangible assets, but also your digital, intellectual, technological, and other such assets, when planning your estate. This is why you must choose attorneys who understand the complexity of these assets and can advise you on how to protect yourself and your business as well as your beneficiaries and heirs.

The Libby Law Firm has been at the forefront of the union of technology as it relates to trusts, estates, business planning, and representation of individuals and businesses with non-traditional assets. Our Atlanta Attorneys also specialize in business, trust, and estate litigation as it relates to “intangible” and “non-traditional” assets.
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