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Last Will & Testament

Last Will and Testament (North Fulton County & Atlanta)

You Need a Will!

First off, you need a will. Everybody needs a will. No exceptions. We get calls at least once a day from people whose family member died without a will. This can cause huge problems.

Basically, a will (also known as a “Last Will and Testament”) is a legal document that states your wishes regarding the distribution of your real and personal property when you die. It also provides for the care of children through the appointment of a guardian and trustee.

If you don't have a properly made will, your property will be distributed according to the state of Georgia and a judge – not your wishes.

Your Will Is Only Going To Be Used Once – We'll Make Sure Yours Speaks Clearly

 At our Atlanta Metro Area law firm we have a focus on wills, living wills, and powers of attorney. As estate planning attorneys we would never give a client a one-size-fits-all will to sign.

Rather, we carefully design and create a will to that effectively speaks for you, post-death. In probate litigation we've seen the problems caused by poorly designed, cookie-cutter wills and trusts. We totally are committed to providing excellent service to each and every client and our goal is to help you avoid a will contest.

What is involved with estate planning?

Estate planning in Georgia can involve many things. Here are some areas that estate planning addresses:

  • Wills
  • Trusts
  • Beneficiary Designations
  • Powers of Attorney
  • Property Ownership
  • Gifting
  • Special provisions for minor children and loved ones with special needs. 

A valid Georgia will must contain the following features:

  • It must be in writing. (Oral wills are invalid.)
  • It must be signed at the end of the document.
  • You need witnesses. Two people have to witness it and be present at the time of signing. These two people must acknowledge they were present and must sign the will as witnesses. But the two people don't have to be together at the same time of signing.

What is the purpose of a will?

The main purpose of your Last Will and Testament is to legally distribute any property you own in the event of your death. But a will is also used to:

  • Make sure your spouse or partner receives your possessions. This needs to be specified in the will so that there is no doubt of your intent.
  • To appoint a legal guardian and trustee for any children who are minors (classified as aged under 18) at the time of your death. A guardian makes decisions regarding raising the child, and the trustee makes financial decisions.
  • Appointing an executor to make sure that your wishes are followed.
  • Specify your beneficiaries. Beneficiaries are those people who get stuff under the will when you die. That includes personal and real property.
  • Some people make specific bequests such as collectibles, artwork, jewelry, guns, cars or family heirlooms. They may also make charitable donations thru the will.
  • Your specific funeral wishes. Some people want to be buried and others want to be cremated.

Why do you need a will?

  • Without a valid and legal will, the state of Georgia will determine what happens to your assets.
  • A correctly written Last Will and Testament will help your family avoid a lengthy and expensive probate process. That's why we will draft a clear and concise will so your wishes are perfectly known.
  • You may want to disinherit any individual you don't want to benefit from your death.
  • Your new will supersedes any previous versions and, once properly signed, revokes any prior will that may exist.
  • A will is only binding after death. Before your death, it has no authority.

Our team will walk you through various scenarios to address your specific situation.

  •  The best way for your assets pass to your surviving spouse should something happen to you?
  • No surviving spouse, then how should your assets be allocated to your children?
  • When should heirs have access to the funds?
  • Who to put in-charge of managing family assets?
  • Blended families are common today. What if your spouse has children from a previous marriage? How to allocate your assets?
  • Most importantly, who will become guardian and trustee for your young children?

Can a will be void or invalid?

Yes, a will can be considered legally void or invalid. A will can be found invalid if any of the following are found to have played a part in its origin:

  • Threats
  • Fraud
  • Violence
  • Coercion

The impact of mental illness

Many millions of Americans suffer from mental illness.

Having a mental illness or disease does not automatically mean a person lacks the required mental capacity to make a will. If it can be demonstrated that the person has periods of lucidity, they may still be competent to sign a will during one of those periods.

Millions of people suffer from dementia. If they were able to engage in estate planning before the symptoms began they may still be able to create a Last Will and Testament. If you or a loved one has dementia or another mental illness that impacts their legal capacity, it may not be too late. It is wise to consult an estate planning attorney in Georgia to determine whether a person meets the criteria to be considered competent.

Temporary incapacity does not necessarily prevent creating a Last Will and Testament

Many times, legal incapacity may only be temporary.

An individual's legal capacity can return when the condition or trauma that caused the incapacity has been resolved. Intoxication, for example, is a temporary condition that causes legal incapacity. But that is resolved once the person becomes sober. A minor might be incompetent, but ends when the person reaches the age of majority. 

Even a severe medical condition such as a state of unconsciousness or coma can also be temporary. His or her ability to make decisions can also return when the condition or trauma that caused incapacity has been resolved.

What are some common mistakes when making a will?

  • Not getting a will: It's your money, property or collectibles. You need to determine where it goes. You also need to protect your family and kids.
  • Using DIY forms. Don't use some lame forms you find on the internet or in a book. A last will and testament is too important to not get done right. You have one chance to do it. Do it correctly!
  • Make sure you appoint a good executor: Choose someone with common sense and good judgement.
  • Mishandling gifts to minor children. You need an estate planning attorney to ensure that gifts to minor children are done correctly under Georgia law.
  • If you are going to disinherit, acknowledge what you are doing in the will. You are free to distribute your estate in any way you wish.Under Georgia law and you can disinherit anyone you want without being required to provide a reason. But that can cause confusion and may invite a challenge and a court to take action. It's best to acknowledge the individual disinherited and that he or she is not to take anything under the will.

What does my estate include?

Your estate is comprised of everything that you own, located anywhere in the world, including:

  • Your home or any other real estate that you own
  • Your share of any joint bank or brokerage accounts
  • Any property owned by a trust, over which you have a significant control
  • The full value of your retirement accounts
  • Your business 

Who should I name as the Executor of my Will in Georgia?

Naming a good executor in your Last Will and Testament is an important decision. Here are some factors to consider for your Executor:

  • Does your Executor have the skills and understanding to manage an estate distribution?
  • Is your Executor available to handle your estate upon your death?
  • Is your Executor trustworthy, especially in handling money?
  • Will your Executor be able to work well with your beneficiaries to resolve any disputes or issues that may arise?

Who can get my assets and property?

That's completely up to you. Under your will we can help you divide up your property and assets in any way you want. Your beneficiaries can include:

  • any friends you wish to include
  • family members
  • charities of all different types
  • any other organization you want

Who are beneficiaries in a will?

In the most general sense, a beneficiary is anyone or any group that benefits or is advantaged under your will. This includes any person or organization that gets any assets under the terms of your will.

Who is a "testator"?

A testator is the author of a Last Will & Testament. The person who makes a will is called the ‘testator' as he is “attesting” to his wishes, which are set forth in his will. It is actually a gender neutral term and can refer to a male or a female. However, when referring to a female, it is not uncommon to see the word (‘testatrix') used, particularly in older wills. 

Let's say you don't make a will. What happens then?

If you don't make a Last Will and Testament or if you draft it incorrectly and it is deemed invalid, you will be declared intestate after you die. If this happens, the intestacy laws of Georgia and a judge will determine who gets what from your estate.

Without a proper, valid will, your estate will go to probate and the court will appoint an administrator. A person appointed by a court to administer an intestate estate in accordance with the rules of intestacy is known as an administrator.

What about my pets?

People love their pets. Whether you have a dog, cat, bird, horse or other animal, you can set aside funds specifically for their care and upkeep. This is now commonly done by many animal lovers in Georgia.

What if I get divorced?

If you are going to get divorced, or in the process of getting a divorce, or you are now divorced, you need to change your will immediately. If you don't, your for husband or wife can inherit from you. They can get your money, real property, and everything else.

My daughter is a heroin user and I think she's a prostitute. (My wife found a picture of her at an Atlanta escort service website). Does she have to take anything under our wills?

No! You don't have to give her anything under your will. Many times children are excluded from wills for things like drug use, mental illness, previous violent acts, etc.

What about my internet accounts?

The internet is everywhere. People have many internet accounts. It's a good idea to list the accounts you have and the passwords and who you want to control them after you die. You can provide this information to the executor of your estate.

What is my “Estate”?

At death, your “estate” consists of all the things that you own by yourself. This includes things like your car, bank accounts, clothes, jewelry, business interest, etc. Anything you own is part of your estate. Joint accounts and beneficiary designation accounts or life insurance are NOT part of your estate for probate purposes.

What is an "executor" and who should it be?

An executor is an individual who administers the estate of a deceased person. The executor's duty is to carry out the instructions and wishes of the deceased as contained in the will. A Georgia will should name an executor and a backup executor. Your choice of an executor should be a person you trust. The person should be capable and have good judgment. It can be a family member or friend.

You can disinherit someone

You decide who gets things under your will. Many individuals don't want to leave property to people who are lazy, foolish, big spenders, or someone they just dislike. It's up to you. And we'll help you do it properly.

Don't make mistakes. Or your will can be found invalid.

Mistakes can mean your will is invalid. Then it won't do what you want it to do. Not only can errors invalidate your will, they can also cost you a lot of money. We'll make sure your will is drafted properly so you don't have a lot of problems.

We had a new grandchild. Should we update our wills?

With each new milestone in life, you should take the opportunity to revisit your estate plan. You should make updates that reflect the new changes. Certainly a new family member is an important time to examine your last will and testament and perhaps make necessary changes.

Many people don't have a will. That's a huge mistake!

A will is hugely important. But many people never get a will. In fact, more than 50% of people don't have a will. That only hurts their loved ones, relatives, and friends.

You can name a guardian and a trustee for your children thru your will 

If you have minor children, you need a will. Thru your will, you can name a guardian and trustee for your kids.

The guardian will be the person who will have actual physical custody of your children. The guardian will make decisions about:

  • your children's health care
  • education
  • religious upbringing
  • residence

The trustee is the person who has legal authority over the money your child inherits. Of course, you want to choose your child's guardian and trustee very carefully. You want to choose trustworthy people of good character.

Get a new will after divorce

You need to revisit your estate plan if you're going through a divorce. After a divorce, or better yet before the divorce is official, you need to have a new will drawn up. many people update their beneficiary designations, appoint a new executor, and make other changes. Our attorneys will guide you through this process to ensure that all important issues are properly addressed.

When should you review your will?

You should review your Last Will and Testament on a periodic basis to be sure that your inheritance planning is consistent with your needs and goals. Your needs and goals can change, of course. Here are some events that may cause a review of your estate plan:

Change of marital status: Marriage, separation or divorce

New child: Birth or adoption of a child

Death of an heir or a person designated as a guardian, trustee or executor

Death of a spouse

A move to another state or any change of residence

Significant changes in your health

Starting a business

Significant changes in your financial condition (both good and bad)

Significant increase/decrease in assets

Health changes (illness, surgery, etc.)

What law will apply for my Last Will and Testament?

The law that applies is the law of the jurisdiction where you live at the time of your death. If you live in the state of Georgia, then Georgia law will apply.
 

Should I name a beloved pet as a beneficiary in my will?

 

No, you should not name a pet as a beneficiary. Rather, you should provide instructions to your executor to find good care for your pet and leave money for the pet's upkeep. 

What's a Specific Gift?

In a will you can make give a specific item of property or sum of money to a named beneficiary. For example:
  • I give my diamond watch to my son, Joe Roberts.
  • I give $10,000.00 to my friend, Jill Jones.

Everything that is not given away as a specific gift forms what's called the residue of the estate. 

What about step-children?

 

Unless you have legally adopted them, stepchildren are not your natural heirs under the law. They are actaully not included if you leave property to "all my children." Stepchildren must be named as beneficiaries in your will if you want to leave them something.  

What is Intestacy?

If you die without a will, your assets will be distributed as determined by Georgia's intestacy laws. If that happens, your possessions will go first to your spouse and children if you have them; if not, your nearest living relatives will be next in line to inherit from you – your parents, grandchildren, siblings, and so on. If you are found to have no living relatives at all, the state of Georgia will take your property. 

How long is my will good?

A last will and testament is “good” until it is changed or revoked in the manner required by Georgia law. Your will may be changed as often as you desire while you are of sound mind and not under undue influence, duress, or fraud, provided it is changed in the required manner.

Changes in important circumstances after the execution of the will, such as deaths, divorce, marriage, birth of children, or even a substantial change in the nature or amount of your estate (perhaps the value of your estate has dramatically increased or been reduced), may possibly raise questions as to the adequacy of your will. All changes require a careful analysis and reconsideration of all the provisions of your will and may make it advisable to change the will to conform to the new situation.

I'm single and without children. Do I really need a will?

Yes, you definitely need a will. In fact, probably even more so than someone who is married.

Unless you have a will, your property may not pass to the people you intend. Your estate will be at the mercy of Georgia laws and bureucrats.

A will also makes things much easier for your relatives who survive you. As part of drafting your will, you would name an executor who will be the person in charge of distributing your assets. Without an executor, a judge would have to appoint someone to do this. And it's oftentimes difficult for surviving relatives to find all your assets and figure out how to open a probate action and distribute your property.  

Why should I have a comprehensive estate plan?

For younger clients, another huge benefit of a comprehensive estate plan is the peace of mind in knowing that proper guardians are in place for minor children. A proper plan is necessary as both death and incapacity of parents can occur. If you don't a will, the state ultimately has the authority to determine what guardian may care for the children. Importantly, you may select multiple guardians should the first guardian not be able to serve. Finally, guardians and trustees should be chosen to shelter and protect financial assets for the long-term benefit of the children.

I want to make changes to my existing Last Will and Testament? How do I do that?

You want to be safe and ensure that your wishes are followed, so for major changes, executing an entirety new Last Will and Testament is the most efficient and definitive way. When the new Will has been signed into effect, you would destroy the original copy of your previous Last Will and Testament.

Minor changes can be handled differently. Executing a Codicil to your Last Will and Testament is a good way to make those changes, Codicils are used to change a part of your existing Will or add a whole new provision.

Do I need an estate plan even if I'm not rich?

Yes, of course. Estate Planning is not just for the rich. Everyone can benefit from having an estate plan, even if its a very simple one. Without an estate plan, you have no say about what happens to your assets.  

What does an "executor" do?

Here are some duties executors can be responsible for:

Notifying banks, government agencies, and credit card companies of the death
Creating a bank account for incoming funds and to pay bills
Inventorying the estate's assets
Determining if probate is necessary
Maintaining property until it can be distributed or sold
Satisfying debts and taxes of the estate
Distributing assets
Representing the estate in court, if necessary

Make sure the documents are prepared properly!

Make sure the will is prepared in accordance with Georgia state inheritance laws. If it's not, it may be held invalid. A common mistake is not having it properly witnessed and signed. You need two witnesses who not only saw the writer sign, but also saw each other sign. Both the individual and his or her two witnesses, under Georgia law, should be in the same room at the same time when signing.

Can someone challenge my will after I die?

In the state of Georgia, if your will needs to be admitted to probate upon your passing, any interested party can object. Interested parties include anyone named in your will as well as close family members not in the will. Probate avoidance strategies, such as trust planning, alleviates this concern.

How long is my will good for?

It remains “good” until it is changed or revoked in the manner specified by Georgia wills and trusts law. Your will, in fact, can be changed as often as you like while you are sane and not under undue influence, duress, or fraud, provided it complies with formal legal requirements.

Of course, circumstances can change after the execution of the will, such as tax law amendments, deaths, marriage, divorce, birth of children, adoption, mental illness, change in relationships, or even a substantial change in the nature or amount of your estate. These changes can raise questions as to the adequacy of your present will.

Life changes certainly require a careful analysis and reconsideration of all the provisions of your will and may make it advisable to make a will to conform to your new situation.

At what age should my kids be able to get my stuff under my will?

That all depends on your children and their maturity levels. Some parents believe their children are mature and are ready to receive money and property when they are 18 years of age. Other parents want to wait until their child turns 25 years of age or even 30 years old before they inherit financial means and property.

Do I have to leave my child at least one dollar? (My kid is a thief and drug user.)

 

No. This is not necessary. It can be provided in the will that no provision is being made for that child. An experienced Georgia wills attorney can craft the appropriate language to accomplish your goal.

 

Can I donate to a charity in my will?

Many people choose to donate to charity via their last will and testament. If you do, your will can:

Help sustain and support charities and touch people's lives in a positive way. Charities often struggle financially. By leaving them a bequest, you help them exist and help others.

Leave a very personal legacy. Your memory can live on and you can support a special cause that was meaningful to you.

Offer financial benefits. Tax benefits might be available during your lifetime and to your estate after you pass from a charitable contribution. 

When Atlanta Legal Wills are the Right Solution

There are many factors when considering writing a will. It's important to have a skilled and experienced estate planning attorney working on your behalf. Following are some typical considerations:

  • Expense:  Legal wills in Roswell, GA, are relatively inexpensive to create
  • Simplicity:  Simple estates and even complex estates can often be well-protected and served with a last will and testament is in place
  • Maintenance:  Although a will can be revised at any time, it requires no maintenance to remain effective

Experienced And Personalized Representation

Attorneys Bill Sherman & Valerie Sherman have been helping clients with estate and probate matters for many years. They work closely with clients to identify their specific estate goals and provide a relaxed, comforting office setting in which clients can feel confident talking about their estate and personal matters. They place an emphasis on responsiveness and efficiency.

We work hard to ensure that:

  • We are easily accessible to our clients
  • We quickly return all phone calls and emails
  • Our clients understand their rights
  • We serve as a guide for our clients, helping them to navigate difficult legal matters 

Call attorneys Valerie Sherman & Bill Sherman at (678) 712-8561 to schedule a consultation at one of our convenient office locations in Atlanta, Roswell, and Cumming, Georgia. 


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