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  • Archive for August, 2013

    What Happens to Your Will When You Move?

    Wednesday, August 28th, 2013

    Generally speaking, a will that has been validly drafted in one state will be valid under the laws of any other state. Realistically, however, it often becomes problematic when wills cross state lines. Moreover, all estate planning documents need to be periodically updated as a person’s life circumstances change. It is therefore good practice to update all of your estate planning documents after an out-of-state move.

    The state laws that govern estate planning documents such as wills, trusts, medical directives, and powers of attorney are different in every state. Although these documents may function outside of the state in which you drafted them, there may be extra steps necessary such as locating witnesses and obtaining affidavits. In extreme cases, documents drafted in one state will not be enforced in another state due to the vastly different state laws.

    Moreover, periodically updating your estate plan will keep your estate planning documents from becoming obsolete. Constantly changing state and federal laws that govern wills, trusts, advance directives, and powers of attorney mean that your documents could become useless shortly after its execution based on new laws.

    If you have moved to a new state, it would be best to review your estate plan with an estate-planning attorney within that state. Remember to review your estate plan after other significant life events, too.

    Why Should You Work with a Special Needs Planning Attorney in Peachtree City?

    Tuesday, August 27th, 2013

    Parents of children with special needs in Peachtree City face a whole extra set of challenges in addition to those of other parents.  On top of physical therapy, occupational therapy, IEPs, and any of a million other details, these parents face additional estate planning needs.  That’s where a special needs planning attorney in Peachtree City can make a huge difference in these parents’ peace of mind.

    The items listed above are just some of the things that parents of special needs kids deal with.  When it comes to planning for the future, these parents need to prepare the way for their children who may not be able to work to support themselves as adults.  They have to be concerned with who would be a suitable guardian for their child, what types of medical decisions should be made, and so much more.  Each physical and mental disability comes with its own set of concerns, and parents want to make sure they are addressed even in the parent’s absence.

    Special Needs Planning for the Future

    A Peachtree City special needs planning attorney will be aware of these concerns and will have some answers in place for how to deal with them.  He or she will have worked with many other families, building knowledge and experience which they can apply directly to your planning.

    The professional will also understand the ins and outs of the current legal system to help make sure  you are maximizing your impact.  For example, your lawyer can help advise you on how to make sure your child is well cared for without making him or her ineligible for Medicaid benefits.  In some cases, a special needs trust may be the best approach, while there are other options that might work better in different situations.

    Extending Your Loving Protection

    By creating an estate plan that takes the special needs child into consideration, you and your attorney can also help protect the child from being taken advantage of in the future. It can be used to shield the child from lawsuits and creditors, as well as to designate a trustworthy financial representative who can make money decisions for the child when he or she doesn’t have the best ability to do so for him or herself.  This lessens the likelihood of an unscrupulous sales person, significant other, or “friend” who would take advantage of your child’s financial situation.

    Hire a Peachtree City Special Needs Lawyer Who Keeps Current

    Laws do continue to change, so the best bet is to work with a special needs planning attorney in Peachtree City who keeps up-to-date on changes in this particular arena.  Unfortunately, you will not always be there to care for your most vulnerable children.  Hiring a skilled lawyer in Peachtree City can make a real difference in the quality of life that child experiences once you are no longer there to personally make the best choices for him or her.

    Small Children and Estate Plans in Peachtree City

    Monday, August 26th, 2013

    There is no better reason to have an estate plan in place than for the well being of your young children. Often, young parents avoid estate planning because they believe that they are too young, healthy, or can’t afford a  Peachtree City estate planning attorney. However, estate planning is a vital part of caring for your young child.

    The most important part of an estate plan for young parents is naming a guardian for the children. The guardian is the person who will care for the children should both parents die before the children reach the age of majority. Select someone you trust to raise your children, and discuss your selection with the person before finalizing your will. When making your selection consider the age of the person, and whether they will be able to provide adequate care. Name a secondary guardian in the event that the primary guardian is unable or unwilling to serve.

    It is also important to provide for the financial future of your children. If both parents die before the children reach the age of majority, the children will not be able to receive assets outright. Rather, a person must be designated to handle the assets for the children. This person will have the authority to spend the children’s assets as they believe the parents would have under similar circumstances.

    Often, parents who do create estate plans create a trust to hold assets for their children until they reach the age of 25. Parents are beginning to scatter trust distributions, as well, so that children receive small portions of money throughout their adult lives. This way, if a child is irresponsible at the age of 25, he or she will still receive some inheritance but will not squander the entire amount.

    What Happens if I Die Without an Estate Plan?

    Friday, August 23rd, 2013

    Despite the importance of having an estate plan, many Americans die without one every day. Individuals who die without an estate plan are said to die intestate. If you die intestate, Georgia law determines how your assets will be distributed. All fifty states have laws concerning intestate succession.

    The purpose of intestate succession law is to distribute a decedent’s estate in a manner that conforms to what the average person would have wanted. Most intestate succession plans follow a standard pattern of transferring assets to a decedent’s closest relatives, beginning with his or her spouse and children. If the decedent does not have a surviving spouse or child, the assets will typically go to his or her parents, then his or her siblings, then his or her nieces and nephews, then to his or her grandparents. If no relatives can be located, a person’s estate will go to the state.

    Without an estate plan, your loved ones will have a more difficult time navigating the process of probate. The probate court will likely oversee the entire process, which will result in more time and higher costs. The probate court will also appoint an administrator. This person may not be the person you would have chosen, had you drafted a will.

    Not only can drafting an estate plan ensure that your assets will be distributed based on your wishes, but it can also ensure that more of your assets are going to your desired beneficiaries, rather than the government. Many estate planning tools such as trusts and other non-probate transfers are popular as tax avoidance measures.

    What Does a Probate Lawyer in Peachtree City Do?

    Tuesday, August 20th, 2013

    Oftentimes, a person isn’t even aware of what a probate lawyer in Peachtree City does until he or she is in need of one.  Of course, it is a great idea to hire a probate lawyer before you actually “need” his or her services so things can go as smoothly as possible when it comes to taking an estate through the probate process.  Unfortunately, that’s not always how it works.  It’s very common to go looking for a probate lawyer in Peachtree City once a loved one has passed and help is needed immediately.

    The Fayette County Probate Process

    The Peachtree City probate lawyer’s job is to offer assistance as an estate passes through the Fayette County Probate Court in order for it to be distributed properly.  There are several steps that the court must go through to open and close an estate, and the attorney’s job is to make sure everything is initiated and followed through on as these steps are being followed.

    Some of the basics of probate include:

    ·         Validating the will

    ·         “Marshalling” of assets

    ·         Getting appropriate appraisals for assets

    ·         Creating a list of debts

    ·         Paying debts

    ·         Dispersing the remaining property according to the will

    If there is no will, the estate is said to be “intestate,” and the court will have even more say in what becomes of the decedent’s property.

    When You Need a Probate Lawyer in Fayette County

    Not every estate needs a probate lawyer.  Some Peachtree City families have placed their assets into trusts that actually don’t go through the probate process, for example.  Additionally, some wills are very simple and easy to administer, say as in a case where there are little to no debts and common property is left to a surviving spouse alone.

    In most other cases, however, hiring a probate lawyer in Peachtree City will simplify the process for all involved and will most likely save the estate a fair amount of money.  That is because the attorney will be able to implement strategies to help lower the amount of taxes that need to be paid. 

    He or she can also become an objective outside party who may be able to act as the executor of the will in situations where family tensions run high.  Along those same lines, if someone with a legal financial interest in the estate wants to contest the will, it makes sense to have a probate attorney working to make sure the decedent’s wishes are carried out to the best of the court’s ability.

    Finally, it can be a good idea to get a Peachtree City probate lawyer involved in cases where an individual has a terminal illness.  The attorney can help to get affairs in order by drawing up a will and understanding first-hand what it is that the person wants for the estate.

    What the Probate Lawyer Will Do

    There are many, many tasks that the probate lawyer will perform on behalf of the estate.

    ·         Filing documents with the court

    ·         Creating lists of assets

    ·         Place legal notices in newspapers

    ·         Contact creditors

    ·         Make sure taxes are paid on the estate

    A Georgia probate lawyer must keep current on relevant laws as they change and will work to help clients and heirs follow all of the right procedures while doing their best to protect their interests.

    Keeping Your Wills and Trusts Updated | Peachtree City Trust Lawyer

    Tuesday, August 13th, 2013

    It’s always a great feeling when a new client meets with a wills and trusts attorney in Peachtree City, Griffin or Atlanta to get started on his or her estate planning.  Every day, people recognize the importance of putting a plan into place to prepare for their own futures as well as their heirs.  Wills and trusts are two very important tools that the client and lawyer can create to protect that future.  As important as that initial meeting is, however, there is still a need to follow up regularly to keep your wills and trusts updated and reflective of your current situation.

    There are some times when it is obvious that your wills and trusts should be updated, but there are other times that are easier to overlook.

    Major Life Changes

    When there is a major change in your life, it’s time to call your Peachtree City, Griffin or Atlanta wills and trusts lawyer.  These types of changes, such as a marriage, divorce, or birth of a child may dramatically affect who you want to name as beneficiaries.  For example, if you’ve been divorced but your ex is still named in your wills and trusts, he or she could still benefit after your death.

    Health situations are also another big indicator that it’s time to update your wills and trusts.  Medical care can be incredibly expensive, and you may need to rearrange your plans to accommodate the costs.  If dealing with a terminal illness or potentially life-threatening treatment, it also makes sense to ensure that your plans reflect your wishes.

    Many Purchases Should Trigger Updates

    Wills and trusts lawyers are able to help clients lay out a plan based on what the client has at the time.  When your situation changes through major purchases (or sales) of real estate or other valuable assets, you should update your estate plan to reflect those changes.  You want to ensure that the asset is included in your will or protected by your trust.

    Purchases of, or changes in insurance policies, will likely also lead to a call to your  Georgia estate planning attorney.  These purchases will affect what you have to leave behind and will need to be reflected in your estate plan.

    Annual Review

    While you may not need to make changes with your wills and trusts attorney every year, it’s still a good idea to do an annual review of all your estate planning materials.  In addition to refreshing yourself on what is there, your lawyer will also be able to advise you on any laws that have recently changed that might affect decisions you’d previously made.  Just reading over the documents may be enough to notice a change that needs to be made.  Not only does this give you an opportunity to make sure your plans still fit your needs, but by keeping them up-to-date, you are strengthening your will against being invalidated later.  After all, if you’ve worked with an attorney to keep the wills and trusts fresh and in accordance with the most recent life changes, they are likely to reflect your true intentions.

    The Perils Of Joint Ownership

    Monday, August 12th, 2013

    I often see older people with other peoples’ names on their property as co-owners.  Legally, this type of ownership is called  joint tenancy with right of survivorship, meaning that when one joint tenant dies, the surviving joint tenant becomes the sole owner of the property.  If there is more than one surviving joint tenant, they become equal owners of the property, as joint tenants with right of survivorship.

    There are a few reasons why someone would someone else’s to the title of his or her property, effectively making them an equal owner.  For example:

    • The property owner may be surrendering to pressure from another person who wants the property.  Older, lonely people are especially vulnerable to this kind of pressure, as are people with Alzheimer’s Disease or other forms of dementia.
    • The property owner may see joint ownership as an informal means of estate planning, avoiding the need for an attorney.

    Except between spouses, joint ownership is usually a bad idea, as illustrated by the following real-life examples.

    Joint tenancy of a bank or financial account can support embezzlement.  Each joint tenant to a bank account is actually an owner of the account and has full right to make withdrawals from the account.  In one case, after an elderly woman added her son’s name as a joint tenant to her bank account, mysterious withdrawals of $300-$400 each began appearing in the account every couple of weeks.  Before long the withdrawals were several thousand dollars each.  The matter was reported to the police.  The police said the son was authorized to make withdrawals as a joint owner of the account.  The poor woman was in the very weak position of having to argue her son’s name was on the account only as a convenience to her, for her benefit.  But the woman did not even have a power of attorney in place naming the son as her agent.  This kind of case would be difficult to prosecute. 

    Once a person’s name is added to the title of property, it can be undone only with his or her consent.  In another case, after a woman’s husband died, she added her two sons’ names to the title of her house.  The sons were in their 20s at that time.  Through the years, one son prospered, and the other did not.  When the woman was dying, and getting her affairs in order, she concluded that the prosperous son did not need the house, and attempted to remove his name from it.  The prosperous son balked, and the matter was litigated.  The court held that placing the sons’ names on the title to the property was a completed gift to each of them, making them joint owners of the property, and their names could be removed from the property only with their consent. 

    Another problem is that a joint tenant can sever the joint tenancy and create a tenancy in common, with the result that his or her share of the property passes to his or her heirs, even if he or she predeceases the other joint tenant(s).

    Property held in joint tenancy is immediately subject to claims of each joint tenant’s creditors.  In yet another case, a man bought a house and rented it to his mother.  Their names were on the title to the house as joint tenants.  Later the woman attempted to quit claim her interest in the house to the son.  It turned out that the woman had long-standing, substantial Federal tax liabilities of which the son was not aware when he allowed her name to be placed on the title to the house.  In attempting to collect the woman’s tax liabilities, the IRS found the recorded quit claim deed (the IRS’ tenacity in identifying assets is not to be underestimated).  The IRS asserted that the quit claim deed was avoidable as a fraudulent conveyance, and placed a lien in the house.  The matter was litigated, and the U.S. District Court held, under developing Federal common law, that the mother owned a one-half interest in the house, and that the Federal tax lien against her attached to her interest in the house. 

    Joint tenancy can produce unintended results.  In yet another case, a brother and sister each inherited several million dollars from their mother.  Each of them established a joint bank account in joint tenancy with right of survivorship with the other, and deposited their inheritance into the account.  The years went by.  The brother and sister became estranged, and developed hostility toward one another.  On his death bed, the brother executed a will bequeathing all of his property to his lady friend.  But the bank account was not part of the brother’s estate.  By reason of the survivorship provision, the bank account passed outside of probate to the sister by operation of law.

    A revocable trust is much better than joint ownership for estate planning.  The client “Trustmaker” creates a revocable trust, and transfers his or her property to it (this is called “funding” the trust).  During the client’s lifetime, he or she retains the right to use and enjoy the property, to revoke the trust, to transfer additional property to the trust, and to withdraw property from the trust.  Upon the Trustmaker’s death, the trust becomes irrevocable, and the property held by the trust at that time is administered according to the terms of the trust instrument.  Because the Trustmaker does not own the property at his or her death, there is no need for probate.

    Drafting, execution, and funding of a revocable trust requires estate planning counsel.   But doing otherwise is penny wise and pound foolish.

    Estate Planning and Divorce in Fayette County, Georgia

    Wednesday, August 7th, 2013

    When a divorce—also called “dissolution of marriage” —is imminent, meeting with an  estate planning attorney is not likely at the top of anyone’s list of things to do.  But, it very well should be.  Keep in mind divorce can take a fairly long time (months or even years) to complete.  It makes sense to consider what would become of your assets, or even your physical self, if you should become incapacitated or die before the divorce has been finalized.

    If you do not take steps to change your estate plan in light of an impending divorce, then your soon-to-be ex may still be entitled to everything that was agreed upon when it was originally drawn up (or as the courts deem appropriate if no estate plan is in place).  This means that if he or she has your medical power of attorney, all of your medical decisions will be in the hands of someone who may not have your best interests in mind.  Likewise, if you are incapacitated and your spouse has power over your finances, it’s possible you will not be happy with the outcome.

    Another concern comes up if you and your spouse are co-trustees on various trusts or other accounts.  Again, if you become incapacitated, the spouse could access and use all kinds of property you would not want him or her to have access to.  This becomes a real worry when you realize this person could actually buy or sell property or even take out loans without your consent.

    And, if you have inherited or stand to inherit from your parents, another potential problem arises.  Should you pass away before the divorce is final, your inheritance may legally pass directly to the person you were in the process of trying to get out of your life.  Even if you have assets that would be passed directly to your minor children, without a proper estate plan in place, the courts will likely put your ex in charge of any money or other property that you leave them.

    In order to protect your interests during a divorce, it makes good sense to talk with your estate planning attorney.  An experienced estate planning in can offer advice on where you may be vulnerable.  You may need to work with him or her quickly in order to revoke the appropriate documents, and keep in mind you might need to contact various institutions personally to ensure they are aware of the revocation.

    Once a divorce has become final, there will probably be some accounts and situations in which ex-spouses are no longer beneficiaries, but there are others where you will need to make deliberate changes.  An estate planning attorney who is familiar with the laws specific to Georgia is the best option for ensuring that you are protecting yourself both during and after dissolution of marriage.

    Robert M. Goldberg & Associates has over 14 years specializing in estate planning and elder law with offices in Atlanta, Griffin and Peachtree City, Georgia.

    Are you or a loved one transitioning to an Assisted Living Facility?

    Monday, August 5th, 2013

    No doubt you have a lot on your mind while turning this page in life. There are a lot of steps in order for this transition to go smoothly. Have you considered reviewing you or your loved one’s Estate Planning documents as one of the crucial steps in this transition? If not, maybe it’s time to re-consider.

    Often times you or your loved one may have had an Estate Plan or Will drafted years ago. Those documents likely reflected your wishes and met your needs at the time. Moving forward time passes things change and what was once a current Estate Plan may no longer fill the need or reflect current wishes. Not only that, failure to review now can prove to be both stressful and costly later.

    Consider the example of Doris and Harry, a married couple of 50 years. When they did their Estate Planning, Doris made Harry her Agent in her Durable Power of Attorney. Several years later, Doris was diagnosed with Alzheimer’s disease. She eventually had to transition to an Assisted Living Facility. Having previously signed a Durable Power of Attorney as part of her Estate Plan, her family thought that everything was properly in place. Shortly after Doris settled into the Assisted Living Facility Harry became ill and passed away.

    What a review of their Estate Plan would have revealed, was that Doris’ Power of Attorney did not name a successor Agent. Therefore, when Harry passed away there was no one legally able to handle Doris’ affairs. Suffering from late stage Alzheimer’s, Doris was unable to appoint a new Agent. The children had to go through the “Living Probate” process: the lengthy and costly process where the court is petitioned to appoint a Conservator and Guardian in order to handle Doris’ living and financial matters for her. In this case Doris’ children were appointed by the court to handle their mother’s affairs. In some cases however, County Conservators and Guardian’s are appointed, leaving the children and other family members powerless to assist.

    Taking the time now to meet with an experienced Estate Planning attorney can help you review the documents you currently have in place, and ensure that they withstand the “worst case scenario” test before you find yourself in it!

    Robert M. Goldberg & Associates has specialized in Elder Law and Estate Planning for 14+ years and has helped over 2,000 families prepare for the worst.

    We have offices located in Atlanta, Peachtree City, and Griffin. If you would like to check off another step in this transition process please

    call Laura at 770-229-5729 and set up an Estate Plan review today!