Every adult in Georgia should have four important estate planning documents: a will, an advance directive for health care, a durable financial power of attorney, and, for most people, a revocable trust.
These documents answer important questions about what happens to your belongings, who can make decisions on your behalf, and how to make things easier for your family when the time comes. You don't need to be wealthy or approaching retirement to think about estate planning. Here’s a look at what each document does and why it matters.
A Will
The first document that comes to mind when you think about estate planning is likely a will. It explains how you want your property distributed after your death and names an executor to handle your estate. If you have minor children, your will can also identify who you'd like to serve as their guardian. Without a will, Georgia law generally determines who inherits your property, which may be different from what you would have wanted. The court may also need to appoint someone to handle your estate.
Does Having a Will Mean You Can Skip Probate?
As our CPMT attorneys explain in their recent conversation, "A will is intended to be probated." Probate is the legal process used to establish a will's validity and authorize an executor to handle the estate. In Georgia, probate isn't necessarily something everyone needs to avoid. However, some courts have experienced significant delays. Tesh Patel shares, “In some cases, some counties in Georgia have even lost entire probate files.” Those delays are one reason to consider how a will and other planning tools can work together.
An Advance Directive for Health Care
Imagine being seriously ill or injured and unable to communicate with your doctors. Who would make decisions about your treatment? Would that person know what you wanted? A Georgia Advance Directive for Health Care allows you to name someone you trust to make medical decisions when you cannot make them yourself. You can also provide instructions about certain medical treatments and end-of-life care.
What Happens If I Don’t Have an Advance Directive?
Without an advance directive, your loved ones may be left trying to figure out what you would have wanted. Depending on the circumstances, Georgia law can decide who has authority to make certain decisions, which can make an already stressful situation more difficult. Having this document in place gives your family and medical team clearer guidance. It also lets you choose someone who understands your wishes and is comfortable speaking on your behalf.
A Durable Financial Power of Attorney
A durable financial power of attorney allows you to choose someone to handle financial matters on your behalf. That could include paying bills, managing accounts, or handling other responsibilities if you become unable to do so yourself. One concern people sometimes have is that signing a power of attorney means giving up control of their money. Fortunately, that's not how it works. As our team explains in the latest podcast, signing a power of attorney doesn't take away your ability to manage your own finances while you're capable of doing so.
What Happens Without a Financial Power of Attorney?
Imagine a parent develops a serious illness and can no longer manage their finances. Their adult children want to help, but being someone's child doesn't automatically give them legal authority to access accounts or make financial decisions. Without an appropriate power of attorney or another arrangement, the court may appoint a conservator, which can be a costly and time-consuming process.
A Revocable Trust
A revocable trust is another estate planning tool worth considering, even if you already have a will. With a revocable trust, you can place certain assets into a trust that you continue to control during your lifetime. You can also specify how those assets should be managed and distributed after your death.
One potential benefit to a revocable trust is that assets properly held in the trust can generally pass according to its terms without going through probate. While probate in Georgia isn't always a major concern, delays can make revocable trusts an increasingly attractive option. This can give families another way to handle certain assets without waiting for the probate process to move forward.
What Happens Without a Revocable Trust?
You can have a valid estate plan without a revocable trust. However, assets that must pass through your estate may require probate before they're distributed, which can lead to additional delays and paperwork for your loved ones. There's also an important detail to remember: creating a trust doesn't automatically mean that all your assets are in it. If certain accounts or property are overlooked, they may still need to go through probate. That's why funding and maintaining your trust are important parts of making the plan work as intended.
Family Changes That Should Trigger a Review
Marriage, divorce, the birth of a family member, and the death of a family member are all good reasons to revisit your estate plan. These changes can affect who you want to inherit your assets, who you've named to handle important responsibilities, and how you want to provide for your loved ones. It’s important to review your documents at least every five years, and sooner if any of the four big life events mentioned above take place.
Moving to another state should also prompt a review, since laws and requirements can differ. And when Congress discusses significant tax changes, particularly estate or gift tax provisions, it's worth checking whether those proposals could affect your planning. The bottom line is that your estate plan should reflect your life as it is today, rather than the circumstances you had when you first signed the documents.
Get Your Estate Planning Documents in Order
Estate planning can feel like something you'll get around to eventually, especially when you're healthy and busy with everyday life. But these documents are most helpful when they're in place before your family needs them. If you're creating an estate plan for the first time or reviewing documents you signed years ago, the attorneys at Cohen Pollock Merlin Turner can help you understand your options and make decisions that fit your life.
Schedule a consultation with CPMT.
Frequently Asked Questions About Georgia Estate Planning
Does a will avoid probate in Georgia?
No, a will doesn't avoid probate. Probate is actually the process used to establish a will's validity and authorize the executor to administer an estate.
Do I lose control if I sign a power of attorney?
No, signing a financial power of attorney doesn't automatically take away your ability to manage your own finances. As long as you have the capacity to make decisions, you generally retain that authority.
How often should you update your will?
A good rule of thumb is to review your will and other estate planning documents at least every five years, with brief check-ins more frequently. You should also revisit your plan after any major changes, including marriage, divorce, the birth or death of a family member.