Karen L. Sacandy is a practicing attorney based in Woodstock, Georgia.
If you do not have an Up-to-Date Simple Wil in Georgia:
1. YOUR ASSETS MAY NOT PASS TO THE CORRECT PEOPLE
If you do not specify who inherits your assets in a Will, the intestacy laws will govern. In Georgia, if your assets pass by intestacy and you have children, your property is divided equally between your spouse and your children, with your spouse receiving no less than one-third (1/3). Thus, your spouse could end up owning your marital home and all other property with your minor children, and in need of probate court approval for whatever he does with assets the children own with him.
Likewise, if you have a child who has not spoken to you in years, that child will get a share of your estate. Similarly, if you have a Will but it is out of date, your Will may not sufficiently provide for those you now consider to be your beneficiaries.
2. IF YOU OWN A FAMILY BUSINESS, IT COULD PASS TO INDIVIDUALS WHO DO NOT GET ALONG
If your assets pass by intestacy, or if you have acquired a family business since you had your Will drawn, your family business could be divided in an inappropriate way. For example, your second spouse may end up sharing the family business with your children from a prior marriage. In fact, the children from the prior marriage could end up controlling the family business that had been run by you and your second spouse, leaving your spouse with no control over the asset that could be his or her primary source of income.
3. THE COURT HAS TO BE INVOLVED IN FAMILY FINANCES
In a Will, you are able to confer specific powers on your Executor in addition to those granted by statute, such as the ability to serve without posting bond or to sell real estate without a court proceeding. If a person does not have a Will, or the Will they have does not confer these specific powers, many things cannot be done throughout the estate administration without going to court. Such proceedings are bothersome and expensive.
Further, the role of Executor or Administrator becomes more onerous as what you own (think dining table, chairs, bedroom suite, books, silverware, et cetera) must be inventoried for a report to the court, as well as annual returns reporting monies which came into, and out of, the estate over a year’s time. These duties and others can be waived through a Will.
4. THE COURT WILL APPOINT THE GUARDIAN OF YOUR MINOR CHILDREN WITHOUT YOUR INPUT
If you die without a will, the court will appoint the guardian of your minor children without any input from you. A recommendation by a parent as to a guardian for his or her minor children can serve as a guide to the court in appointing a guardian for those minor children.
If your Will is from long ago, for example, right after your children were born, it’s quite possible the persons you nominated in that Will are no longer in your circle of friends and family, or are no longer well, and other persons need to be appointed.
5. EQUAL DISTRIBUTIONS TO CHILDREN CAN BE INEQUITABLE
If you die without a Will, and leave behind two children and no spouse, those two children will share equally in your estate. What if one of your children is 32 and a surgeon, and one of your children is 19 and has just begun college? Even though you have already put one child through college and medical school, that child will share equally with the child that is just beginning college, which is probably an inequitable result. A similar situation could occur with a Will that is dated.
6. THE LAST THING YOU SAY TO YOUR LOVED ONES IS “I DIDN’T THINK ABOUT HOW DIFFICULT THIS WOULD BE FOR YOU.”
At the time of your passing, regrettably, your family may have endured with you your extended illness, or been shocked by your sudden passing. If you don’t have a Will, you will be adding to their burden while they are enduring many other stresses and mourning, which is something you would never purposefully do to your family.
Planning for your estate is something people generally dislike, but often feel a necessary task is completed when it is done. Even simple estate plans involve issues other than drawing a Will, such as reviewing title to your home and beneficiaries of your life insurance and 401(k)s, getting a power of attorney in place, having certain medical care documents.