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A Call to Action Take Control of Your Estate Plan

Jesse A. Block--Kennesaw Estate Planning Attorney Oct. 26, 2022

Person in suit sitting at desk with two other people talkingOftentimes, when I speak with potential clients about how their estate planning is going, I receive a response expressing their lack of need for one. For example, one client named Tim*, during our consultation, asserted: “Oh, I’m not wealthy or old, so I don’t need to worry about that right now.”  

While Tim and individuals similar to him may feel that they don’t need an estate plan, this is not really an issue of necessity. In fact, they already have one. Everyone has one. You have one. But how can that be?  

Let Me Explain: 

The default process for administering an estate is that it be decided by the government. This means that if you do nothing regarding your estate’s administration, the government will do it for you. The government may appoint someone that you don’t know to administer your estate. A judge will decide who cares for you kids--a judge who knows nothing about you. Additionally, if you are still living but become incapacitated, a judge will appoint someone to make important financial and medical decisions for you. So, if you don’t create an estate plan rest easy knowing that the State of Georgia along with the duly elected politicians have planned for you or maybe that isn’t the most assuring idea. 

If Tim were to die without a will or other estate planning documents, his assets would default to Georgia’s intestate succession rules. 

If you die without a will, your assets will go to your closest living relatives. This usually means that they would receive all of the property, debts and obligations in your estate. If there are no surviving close relatives or if the person who inherits from you refuses to accept their inheritance, then state law directs that all or some of your property must be given away according to its value (these are known as “void” gifts). 

If Tim were to die without a will or other estate planning documents, his assets would default to Georgia’s intestate succession rules. These rules determine how property is distributed when someone dies without a valid last will and testament. 

If You Pass Without a Will 

If you pass without a Will, your estate will be distributed according to Georgia law. This can seem complex and overwhelming at first, but here are the basics of how intestate succession works: 

  • Your estate will be distributed by descent and/or representation (depending on whether or not you have living children). 

  • If you have a surviving spouse and no descendants (children, grandchildren, or great-grandchildren), then your estate passes to your spouse. 

  • If you have a surviving spouse and living descendants, then your estate passes equally to your spouse and descendants with your spouse getting no less that one third (33%) of your estate. 

  • If you are not married or if you don’t have a surviving spouse but you do have living descendants, then your estate will be equally divided among your living children then grandchildren, and great-grandchildren. 

  • If there is no surviving spouse or descendants, your estate passes to your parents equally. 

  • If only one parent survives you, that parent receives the entire estate. If both parents survive you and there are no other heirs of any kind (spouse/descendants), then those two individuals each receive an equal share of your property passing by intestate succession. 

  • If there is no surviving spouse, descendants, or parents, then your estate will be divided equally amongst all your living siblings. 

  • If no one survives you then your assets will go to the State of Georgia. This is called escheat, and this is rare.

To recap, if you pass away without a will the State of Georgia distributes your property in the following order of priority: 

  • To your spouse and any living children. 

  • To grandchildren and great-grandchildren (your descendants). They inherit equal shares as a class of your estate. 

  • If you have no descendants, the state of Georgia will distribute your property among your surviving parents, siblings and other close relatives.  

  • If there are no surviving relatives, then the state will take it. 

Common Intestate Succession Scenarios 

There are three common scenarios that can occur when an individual dies without a will: 

  • A Spouse and no Children - In this situation, the surviving spouse gets everything. 

  • A Spouse and Adult Children - In this situation, the surviving spouse and the children split the estate equally provided that your spouse gets no less than one third of your estate. The rest is divided between your children, with each child getting an equal share of what remains (if there is more than one). 

  • A Spouse and Minor Children - In this situation, everything is split the same way as the above scenario with the difference being that the assets for any minor children will be held in a trust created and managed by the probate court until each minor child reaches 18 or become legally emancipated. At that point, they have total control over their inheritance in a lump sum; it's theirs to do with as they please! I know that the idea of presenting your 18 year old children with a lump sum of tens or hundreds of thousands of dollars even in a modest estate is probably not ideal. 

The intestate process requires a probate to be initiated in order for your estate assets to be distributed to your loved ones. This can result in your family being unable to continue the standard of living they are accustomed to until the process is complete. Additionally, assets that you think would be available for your family may be tied up in a trust for your children until they turn 18. The trust created by the court may require a court appointed trustee and a guardian ad litem to make sure that the assets are maintained. Both positions are paid by your estate and may be costly. 

Going Back to My Prior Example, Tim is Not Alone in This Mindset. 

While Tim is not alone in this mindset, many people don't think they need an estate plan yet. 

It's important to realize that most individuals do not have a formal estate plan in place. One study found that only 25 percent of people over the age of 50 had created a will or trust. While they may feel like they don't need one, the reality is that without an estate plan your assets will be distributed according to state law, which can be very costly and time consuming for your loved ones. 

If you don’t have an estate plan in place, it is possible that your assets could be distributed in a way that doesn’t make sense for your family. For example, if you don't leave any money to pay off medical bills or support minor children, those individuals may need to go through probate court. This can take several months and cost thousands of dollars. 

Additionally, if you don't specify who should receive your assets, it's possible that the state will decide who gets what. In some cases, this could leave out family members and loved ones who are dependent on you for financial support. 

In Georgia, if there is no spouse or children involved in this latter situation then it may not matter very much what happens because most people do not own any real estate worth talking about until they reach retirement age anyway - which means they won't have much personal property left behind either! But let's say Tim did own some valuable real estate; this could be subject under Georgia law as well since intestacy rules apply only if there are no surviving spouse nor children (heirs). 

If Tim were to die without a valid will or other estate planning documents, his assets would default to Georgia’s intestate succession rules. These rules determine how property is distributed when someone dies without a valid last will and testament on file with the probate court. In Georgia, if there is no spouse or children involved in this latter situation then it may not matter very much what happens because most people do not own any real estate worth talking about until they reach retirement age anyway - which means they won't have much personal property left behind either! 

What Happens if You Die Without an Estate Plan that Provides for Guardianship of Minor Children? 

Without an estate plan that provides for guardianship of minor children, the court must make such determinations as best it can see fit. We are not going to go into detail about what would happen in this hypothetical situation because there are many variables that could change how a case proceeds. However, we do want to point out that the court will take into consideration all relevant factors when making its decision. Some of these may include: 

  • The wishes of the deceased person (if they had expressed them) 

  • The wishes of parents or other relatives who may be willing and qualified to raise your children 

  • The wishes of the children themselves, if they are old enough to express their desires. This is weighed against the ability of each potential guardian to care for the children 

The Six (or Seven) Main Reasons You Should Have an Estate Plan

The biggest problem with intestate succession is that it is a one size fits all solution. Most people don’t find Georgia’s default plan to be the right one for them. There are six main reasons you should have an estate plan: to express your wishes clearly; provide for the guardianship of minor children; avoid probate and the costs associated with that; deal with potential incapacity or disability; avoid a hefty estate tax liability; and adjust outdated or invalid plans. The likely most important reason though is to give you peace of mind that everything is taken care of. Your family will be able to grieve their loss while still being able to live in the family home. Your minor children will be raised by the people your select. Your legacy and how you are remembered will be preserved. 

Creating the estate plan that works for you and your family’s needs now can ensure that your wishes are carried out after your death. A well-designed plan will allow you to control who gets what from your estate and how it is distributed. You might also want to select someone who will care for any minor children if something happens to you before they reach adulthood (called a guardian). Also consider future care — for example whether there should be life insurance in place (or not) so that your spouse or other loved ones can continue their standard of living after death. 

Estate planning is often thought of as a task for the elderly, but it is useful at any age. Even if you don’t have children or other dependents, having an estate plan in place can help to ensure that your assets are distributed according to your wishes.  

Estate Plans Can Be Created at Any Time During Your Life

Although, it is never too late to create an estate plan; you should consider creating one sooner rather than later for your sake and for the sake of those who depend on you financially and emotionally. 

You may be wondering why it is so important to have an estate plan when there are no immediate needs or pressing concerns. However, we never really know when our last day on earth will be, if you die without a valid will in place, then your assets will be divided according to the laws of intestacy in Georgia. This could have unintended consequences that may create conflict for your family. Instead of protecting and providing for those who depended on you emotionally and financially during your lifetime. Creating an estate plan now could save them from being devastated by someone else's decisions about how your legacy and life savings are distributed after death. 

However, the way to change that is by taking action and planning for yourself. Your property doesn’t die with you, so the government has to administer that for the sake of society; however, your personal plans will take precedence. 

If you’re okay with the state planning everything for you, then you don’t have to do anything. If you want to sleep better at night knowing that your property, loved ones, and children will be cared for according to your wishes then now is the time to act.  

The biggest benefit to taking control of your estate plan is the peace of mind you will get from knowing that your family, assets, and legacy are protected. If you are thinking about creating an estate plan, then you might be wondering how to get started. The first step is to meet with a qualified attorney who specializes in estate planning and trusts. They will help you determine what type of document would be best suited for your unique situation. 

We hope that we have provided you with the information needed to make an informed decision about your estate planning. If you are ever unsure about anything related to this topic, please feel free to contact us at our offices—we are always happy to help! 

Give Jesse A. Block and the Kennesaw-based Block Law team a call today at (770) 387-4529 and let us help you to take control of your affairs so that your personal choices matter. 

*Names were changed or used with permission.