While it doesn’t happen in real life as often as it does in the movies and on soap operas, Marietta GA wills and trusts lawyers do sometimes have to deal with a contested will. Wills and trusts are created in order to ensure that a deceased’s wishes are followed, as well as for the financial benefit of heirs. Additionally, they are often used to protect minor children or those with special needs.
When a will is contested, it’s usually by someone who feels that property left to the will or trust was not bequeathed appropriately. In the case of children, someone may feel he or she is a better-suited guardian than the one a parent named. It’s up to the Marietta wills and trusts lawyer to help ensure that the decedent’s wishes are carried out. This may boil down to refuting claims made by others, but the most important job is to set the will or trust up properly to begin with.
When Can Someone Contest a Will?
There are several reasons that a will can be legitimately contested:
- The decedent didn’t understand the choices he or she was making
- There is a mistake in the will
- It wasn’t properly executed (witnessed, etc.)
- The decent was unduly pressured by someone else
Contesting a will is not easy. Wills and trusts lawyers in Marietta and Cobb County do everything they can to make sure their client’s wishes are outlined according to the letter of the law in order to avoid just such a scenario. It’s also possible for a testator (the person making the will) to include a no-contest clause. The clause clearly indicates that anyone who contests the will forfeits their inheritance. This isn’t a 100% guarantee that no one will contest it, but it does offer some incentive to better follow your wishes. A Marietta Georgia wills and trusts lawyer can work with you to determine if this kind of clause might be beneficial.
When Can Someone Not Contest a Will?
There are reasons to contest a will, but “I don’t like what it says” is not one of them. An individual isn’t allowed to simply drag everyone into court to change a will because he or she isn’t happy with the way the property has been distributed. So, if your sister thinks she should have gotten your mother’s ring, but you left it to your daughter, the sister doesn’t have grounds to contest the will. Additionally, only someone with a direct financial interest is allowed to contest it. That means that a son-in-law cannot contest a will because he thinks his wife was treated unfairly.
Avoiding the Issue Altogether
The best approach, of course, is to work with an experienced Marietta wills and trusts lawyer who can set things up properly from the very beginning. The estate plan should be comprehensive and not leave room for ambiguity to be exploited later. Likewise, the attorney will make sure that each aspect of the process complies with applicable laws. As for the testator, there are things he or she can do to reduce the likelihood of a will being contested, one of the most important of which is to share what the will says and what your reasons are with beneficiaries before you pass away. This leads to less surprises later and also provides a better understanding of the decisions you have made.
It will probably cost more initially to set up a well-drafted living trust than to have a will prepared by an Atlanta wills and trusts lawyer. A true cost comparison should include not only the expense to establish the will or trust, but also what it will cost should you become incapacitated and after you die.
The Key Takeaways:
A living trust document has more provisions than a will because it deals with issues while you are living and after you die, while a will only deals with issues that occur after your death.
A properly prepared and funded living trust will avoid court proceedings at incapacity and death. A will provides no such protection and can, in fact, ensure court intervention at both events, which can be very costly (in time, privacy and dollars) to your family.
Instructions at Death and Incapacity
Both a will and a living trust contain instructions for distributing your assets after you die. But a living trust also contains your instructions for managing your assets and your care should you become incapacitated.
A Living Trust Avoids the Costs of Court Interference at Incapacity and Death
A properly prepared and funded living trust (one that holds all of your assets) will avoid the need for a court guardianship and/or conservatorship if you become incapacitated. The person(s) you select will be able to manage your care and your assets privately, with no court interference.
A will can only go into effect at your death, so it can provide no instructions regarding incapacity. In that case, your family would almost certainly have to ask the court to establish a guardianship and/or conservatorship for your care and your assets—a process that is public, time consuming, expensive and difficult to end.
What You Need to Know. The same living trust document that can keep you out of a court guardianship at incapacity can also keep your family out of probate court when you die. But a will must go through probate. Depending on where you live, this can be costly and time consuming.
Costs to Transfer Assets…Pay Now or Later
There may be some minor costs to transfer assets into your living trust when you set it up, and then from your trust to your beneficiaries after you die. But these will be minimal if you and your successor trustee do much of the work yourselves. With a will, the probate court (with its costs and attorney fees) is the only way to transfer your assets to your heirs after you die. So you can pay now to set up your trust and transfer titles, or you can pay the courts and attorneys to do this for you after you die.
Actions to Consider
- Find out what probate costs are where you live. If your state has a fee schedule based on the value of probate assets, this will be fairly easy. If it has “reasonable” fees, ask an attorney to estimate what these fees would be if you die tomorrow and, if you are married, if your spouse dies the next day.
- Similarly, ask your Atlanta living trust attorney to estimate what the costs would be if you become incapacitated tomorrow and, if you are married, if your spouse becomes incapacitated the next day. (Practically speaking, this will be impossible to estimate because no one will be able to predict how long the incapacity will last or what complications might arise. The mere uncertainty of these costs should give you pause—and propel you to plan for incapacity.)
- Add these estimates to the cost of having a will prepared—and compare that to the cost of a living trust. When you make a true comparison, you may conclude that having a living trust actually costs less than a will.
If you’d like to find out whether a will or living trust is the best vehicle for your Atlanta Georgia estate plan, call us at 770.425.6060 and schedule a Georgia Family Treasures Planning Session with us.
Experienced will lawyers in Marietta, Georgia, often feel like they’ve “seen it all.” This is good news for clients, because it means that the attorney can help you prepare for situations that you might never have expected otherwise. One surprise that people hear from their estate planning lawyers is that you can’t use your will to pass on all types of property. While it seems like you should just be able to put it all down on paper and be done with it, there are some things that must go through different channels.
- Living Trusts – Property that you’ve put into a living trust must remain with the trust and be administered according to that trust. It can’t then be named in a will with an expectation that the will can supersede the trust.
- Joint Tenancy – Property that is owned with someone else can not be passed on. In these cases, the surviving co-owners will receive your share. This can be a major concern, so you want to work with your will lawyer in Marietta to fully understand state laws regarding this type of property.
- Life Insurance – Of course you want your life insurance policy to pay out to one or more beneficiaries, but that is handled through the policy itself, not with the will. If your insurance policy names a beneficiary, the will cannot be used to leave the funds to someone else.
- Other Property with Beneficiaries – Basically, if you have a payable-on-death bank account, vehicles or stocks held in beneficiary, or some kind of retirement plan where a beneficiary is named, you do not use the will to pass these on to someone else. If you want to change the beneficiary, this needs to be done through the institution that holds the account or policy.
You will want your heirs to know about these items, of course, and your will lawyer in Marietta will make sure that they are all included in your plan; however, they won’t be passed through your will. If you have questions or concerns about this fact, we invite you to schedule an appointment at our Marietta wills law firm to ensure that your end-of-life wishes are honored.
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There are times in life when it is obvious that people in the Atlanta area should start meeting with a trust and estates attorney. For example, it’s more obvious that seniors need to get their estates in order than younger people do. While some situations are more urgent than others, there are actually quite a few indicators that you’re ready to start estate planning with an attorney.
Again, advancing age is often the thing that spurs clients to start thinking about their estate planning needs. You’ve spent your life working to earn what you have, and with the approach of retirement and other reminders of aging, people start thinking about what will happen to their assets when they die.
Births and Adoptions
Welcoming a new child into your family brings so many “firsts” along with it. For many people, this is the first time they realize the need to work with an estate planning attorney. Not only are there issues such as planning for college or your child’s financial future without you, but there is the even more pressing matter of naming legal guardians in case you die or become incapacitated. If you want to have a say in who cares for your children when you can’t, having an estate planning attorney draw up the proper documentation is a necessity.
More and more adults are caring for their aging parents these days. Along with that responsibility often comes the realization that Mom and Dad haven’t done any estate planning, or that the documents they created 30 years ago are no longer sufficient. Additionally, you will likely need to put some powers of attorney (for medical and financial reasons) in place, and that is also something that an Atlanta trust and estates attorney can assist you in doing.
Military personnel are often put in situations of great personal and physical risk. It goes without saying, then, that their families understand that there may be a time when tragedy follows. Estate planning with an attorney can help to determine how parents, spouses, dependent children, and others will be cared for should the military member pay the ultimate price.
Another cue that it may be time to choose an estate planning attorney is when an individual is facing a major illness. Estate planning isn’t just about figuring out what happens to your assets when you pass away, but also how your affairs will be handled if you are unable to care for yourself due to illness. It makes sense to work with an attorney to set up a medical power of attorney, a living will, and other related documents that will be in place whether your illness is temporary or terminal.
These are certainly not the only life events that cause a need for estate planning, but they are among the most common changes that make us stop and realize that need.
If you are facing a life transition that now requires some level of estate planning to take place, we encourage you to contact our Atlanta law firm and ask to schedule a comprehensive Georgia Family Treasures Planning Session absolutely free with the mention of this article.
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When meeting with a wills and trusts lawyer in Atlanta for the first time, many adult children realize that they have no idea where their parents stand in terms of having the right plans in place to protect their assets and wishes if something happens to them.
Do their parents have a will or trust and, if so, where are these and other important documents located? Should assisted living or nursing home care become necessary, what plans are in place to cover the costs? Will mom or dad even have enough money after these costs to carry them through retirement?
These are some very important questions that need to be asked, and an experienced Atlanta GA wills and trusts lawyer can steer you in the right direction. That being said, no matter how good your relationship is with mom or dad, the subject can be a difficult one to approach.
Perhaps the best place to start is timing. Holidays such as Christmas, Hanukkah and Thanksgiving are known to be stressful times, so you might want to avoid these occasions. Current events often present the perfect opening, as there is always some Hollywood legend or financial mogul who dies leaving a fortune for the heirs to squabble over.
Or, the personal experience of a friend or relative can be worked into a dialogue. “So-and-So’s mother was admitted to the hospital recently and no one knew where to find her important papers.” For the adult child who is doing estate planning of their own, it would only be natural to want to discuss their parents’ plans with them during this time.
For some families, several conversations over a longer period of time might be a better approach. No one wants to feel like they are being told what to do, and money matters are often emotionally charged conversations to begin with.
Remember, advance preparations are in the best interests of the parents, so that their wishes can be carried out upon death. Be sure to communicate this from the start to avoid your parents shutting down or getting defensive about the questions you are asking.
Finally, don’t forget to include the topic of long-term care in your conversations with mom or dad. While no one likes to think about the possibility of becoming disabled or incapacitated by something like a stroke or Alzheimer’s disease, it does happen and it’s something that must be planned well in advance for. If you start early enough, an Atlanta wills and trust lawyer can help you put the right plans in place to ensure mom or dad’s wishes during incapacity are honored and that they won’t be forced to sell or give away all of their assets in order to qualify for state or federal assistance.
Are you now ready to help your parents put a rock-solid plan in place that ensures their end-of-life wishes are honored to the fullest? Then be sure to call our Atlanta wills and trusts lawyers for assistance. With the mention of this article (“TOUGH CONVERSATIONS”), you may qualify for a Georgia Family Legacy Planning Session ($750 value), at no-charge. Simply call 770-425-6060 to find out more.