Estate FAQ

Do I need a will?

Under Georgia Law, without a will, the assets of your estate do not automatically go to your spouse, but are divided between your spouse and your children. This could result in minors owning assets which would then essentially be frozen until the age of 18. A will allows you to choose the person who will administer your estate as executor or become guardian for your minor children. If you die intestate (without a valid Will), any person having an interest in your estate can attempt to assume those roles, even if that person would not be your first choice. In addition, if more than one person requests appointment, it will be up to a probate court, following a hearing, to decide. This usually requires the services of a lawyer, who will be paid out of your estate.

I own my home and some other assets as joint tenants with rights of survivorship with my spouse. Doesn’t that eliminate the necessity for having a will?

No. Although property you own jointly with your spouse passes directly to that spouse at your death, you must plan for the day when one spouse is gone and the joint tenancy has terminated. Moreover, should you and your spouse die in a common disaster, jointly owned property then becomes part of your probate estates, requiring a properly drafted will to ensure that your childrens’ interests are protected.

Can I not just purchase Will forms from an office supply store or the internet and prepare my own Wills?

You can try. However, are your estate plan, the protection of your assets and the guardianship of your children things you really want to leave to chance? Will preparation is generally not very expensive. We recommend that your estate planning documents be prepared by an attorney.

Can I use a simple Power of Attorney to transfer my property at death?

No. Powers of Attorney are automatically revoked upon your death. Powers of Attorney for financial and healthcare matters are essential, however, as part of your overall estate plan. They allow your spouse/agent to make decisions for you should you become incompetent or otherwise incapacitated. Without a properly drawn Power of Attorney, your loved ones will be required to seek court guardianship to handle your affairs, which is expensive and time-consuming.

Do I need a Living Trust?

Every estate is different, however, in most circumstances, for Georgia residents, a properly drafted Will is preferred.

Shouldn’t I try to avoid probate?

In some states the probate process is difficult, time consuming and expensive. Georgia probate, on the other hand, is generally quick, easy and inexpensive. In most circumstances where there is a properly drafted Will, there is no incentive to avoid probate in Georgia.

Can I not just add family members to the deed to my house?

At Slepian & Schwartz, L.L.C. we do not recommend this type of estate planning. Adding minors to the title to property is never a good idea since it essentially freezes that property until the minor turns 18. In addition, once the minor child turns 18 that child can do anything they want with that property regardless of your wishes. Adding other family members is also not a good idea since any judgments or credit issues those family members may have would then attach to that property.

What is a Power of Attorney for Health Care/Living Will, and do I need one?

A Power of Attorney for Healthcare allows you to name a spouse/agent to make healthcare decisions for you in the event that you become disabled and cannot make those decisions for yourself, including, under what circumstances treatment should be discontinued if it appears the treatment is no longer beneficial to you. A Living Will is a similar document which directs the doctor to discontinue treatment under certain, specified circumstances if you are unable to direct the doctor yourself. At Slepian & Schwartz, L.L.C. we recommend that everyone have these documents prepared so that your wishes will be followed even when you are unable to communicate them yourself. Please note that under Georgia law, without formal legal guardianship or a Power of Attorney for Healthcare, one spouse cannot make healthcare decisions for the other.