By Nubiyn M. Mzekewe, Esq.
It seems with age, we hear more and more stories about the fights and frustrations of families with no explicit direction on how to divvy up the property of a deceased relative. We think to ourselves, “My family would never act like that.” Then, most of us proceed by never getting around to planning for that inevitable and uncertain day.
Well, it’s time.
Even if 40 is the new 50, and 30 is the new 40, and 20 is the new 30, and so forth; you would be ahead of schedule by committing to an estate plan right now. And, believe it or not, an estate plan has never aged or killed anyone. It simply smoothes the transfer of property at your death, because you are prudent enough to plan while you still look (and sometimes frolic as someone) 10 years younger.
Take a serious look at the time-honored principles of basic estate planning, which is comprised of wills, administration of estates, petitions for widow years support, living wills and cost (in the state of Georgia). Not only is adopting these principles wise, but you can encourage family and friends to adopt these principles, especially those doing so to protect a dependent spouse and children (as you plan to do).
LAST WILL AND TESTAMENT
The first thing needed is a Last Will and Testament. It shows organization and tells the whole world how you intend to dispose of your valuable property at death, and who you would like to receive that property as beneficiaries. You may change the will at any time prior to death which includes changes to beneficiaries, with one exception. The state of Georgia will not allow a testator (the one who makes the will) to cut a dependant spouse and minor children out of the estate. It protects a dependant spouse and minor children with a right to support despite any contrary provisions in the will.
Just as vital as deciding how to dispose of you property is choosing the right person to carry out your wishes. That person is called an Executor (or Executrix) who should be reliable, prudent and honest. In many cases, a testator chooses a spouse, sibling, parent or adult child to serve in this capacity. However, it is not uncommon for a testator to name an attorney to act as an executor. Regardless of your choice, keep in mind that this in not a glam job. Though the title may sound posh and grandiose, it carries fiduciary obligations that call for good-old-fashioned diligence and caution.
More specifically, an executor is directed to pay off, settle and compromise all debt claims against the decedent’s estate; distribute the decedent’s property according the will; settle any disputes among beneficiaries; among other things. It is also important to realize that anything of worth in the estate, whether high-priced or an invaluable family keepsake, deserves proper consideration under the will and by a prudent executor. To encourage caution, a testator may require an executor to post a bond to minimize any risk of mismanagement. Because of these responsibilities and risk, an executor is usually paid a reasonable fee. Compliments and “thank yous” may not be adequate payment.
Though you are not required to hire an attorney, there are rules governing how a will is prepared and witnessed to be legally enforceable. If you have little or no property, few obligations and few bequests, you can draft a simple will with no help from others. Otherwise, contacting an attorney is always helpful.
ADMINISTRATION OF ESTATE
In case you die without a will while domiciled in Georgia, the laws of intestacy will determine who shall receive the personal and real property, and who shall act as Administrator. The powers of an administrator are similar to an executor but granted by a letter of administration issued by county Probate Courts of the decedent’s residence. This process is like the latte you didn’t order — not as sweet or creamy and you already left the building.
However, your closest family member typically has priority in applying to serve as Administrator. This may change in the event of an agreement among heirs. In some cases, even creditors may apply for this job where debts are owed and no family relative has come forward to take on the process. Unfortunately, it is also typical for family members to fight over the appointment of an Administrator.
If you are married with children at the time of death, the law authorizes the spouse and children to receive the estate, with the spouse receiving not less than one-third of the estate. For example, if there is a surviving wife and two children, each person receives an undivided one-third interest in the estate. As another example, if there were a wife and four children, the wife receives one-third of the estate while the four children will divide the remaining two-thirds equally among the four of them. If this is not how you planned it, tough luck.
By comparing testate and intestate situations against each other, you will find that testate situations (where a will was created) offer much more protection and less room for misunderstanding intentions to dispose of your estate. Nonetheless, in both situations, there is a six-month grace period allowed before initiating the process to pay debts, distribute property and wind up the estate. What’s the bottom line? If you asked for a double shot of espresso, soy milk, honey and whip, test it before you leave.
WIDOW/WIDOWER YEAR’S SUPPORT
One of estate planning’s most unusual options is the right to file for a widow/widower year’s support. This device makes it very difficult for someone to disinherit a dependant spouse and minor children under Georgia law. In fact, a year’s support may be awarded to a spouse and minor children for 12 months support after a testator’s death. With a slight similarity in Pennsylvania, it is virtually unknown in other states.
A petition for year’s support can be defined as real or personal property being set aside from the estate by a Probate Court for the support of a dependant spouse and minor children for one year after death. However, this is not a distribution of inheritance, and there is no one-third interest limitation as done for intestate administrations of an estate. Persons who are entitled to an award of year’s support are the surviving spouse and minorchildren. Minor children of the deceased, legitimate or not, may also be provided for.
After receipt of a year’s support award, the estate may be administered by will or administration if any property remains in the estate. In small estates, the widow’s year’s support may exhaust the entire decedent’s estate. Under special circumstances, a year’s support may be extended for additional years.
Conversely, a right to year’s support may be lost in several ways, including a lapse of three years from the date of death and the year’s application; remarriage; an election to take under a will; or a prior assent to devise of property, among others.
This bottom line is obvious: Georgia fervently protects spouses and children.
Estate planning also deals with your financial and medical affairs in the event of incapacity. Technically, a living will is not a will at all, since you are giving someone other than yourself powers over financial and medical affairs while you are still alive. Though it does not dispose of property in your estate, it gives important direction on how you want medical care and sustenance to be given in the event you are incapacitated and unable to communicate.
The person given this authority by the living will is often called the Personal Representative. Historically, living wills gave authority to hospitals and medical facilities to make decisions about continuing medical care, food and water. However, living wills have now evolved to the point where that authority is given to the Personal Representative, who decides on and gives directives to medical providers. This minimizes liability risk for hospitals and medical providers since they are acting on the instruction of the Personal Representative.
A living will is usually prepared in conjunction with a special kind of power of attorney giving the attorney-in-fact the authority to handle affairs for another because of mental inability or medical and life-threatening condition. You may disagree, but I suggest a personal representative and an attorney-in-fact who can handle the pressure loving and caring for you.
Why? Because the execution of a Living Will must be handled as carefully as a Last Will and Testament because of the importance of the subject and the long term consequences of the decision. And you should consult competent legal counsel.
Factoring in quelled fears and reduced confusion, the cost of estate planning is very affordable. A simple will may cost as low as $300, whereas a will containing trust and offshore corporations may push the price above $1,000. Administration of estates, petitions for widow years support and living wills are priced very similar to wills. If circumstances are simple, their costs are between $300 and $500. If circumstances are not as simple, these costs increase accordingly. However, you should be aware that it is much more expensive, monetarily and emotionally, if you provide no direction to dispose of property prior to dying.
In other words, without an estate plan, your swank will stank.
Mzekewe & Associates, LLC
Attorneys and Counselors at Law
1963 Highway 138, SW
Riverdale, GA 30296