When we meet with clients or potential clients to discuss their estate plan the first thing we do is make sure that they have the following three documents prepared and validly executed, a Will, an Advance Directive for Health Care and a General Power of Attorney. Below I will briefly discuss each of these documents and why you need one.
1. A Will
– What is a Will?
– A Will is the written expression or directions to one’s family of their wishes regarding the distribution of their property and the management of their affairs after they die. In Georgia you must be fourteen years of age to make a Will. A valid Will must be in writing and must be signed by the person making the Will. Two witnesses must witness the signing of the Will and sign the Will themselves.
– Why do you need a Will?
– When you make a Will you ensure that your property will be distributed according to your wishes. If you don’t make a valid Will, when you die your property will pass per the terms of Georgia law. This process is called “intestate succession” and it makes no allowances for your personal wishes.
– So that you can select the person or company who will serve as Executor of your Estate, to manage and settle your Estate according to the law and the terms of your Will. Without a Will, a court will choose who serves as Executor of your Estate.
– A properly drafted Will can make the probate process cheaper and more efficient for your family. For example, you can relieve your Executor of having to post a bond and file inventories and returns with the Probate Court.
– If you have minor children you can name the person that you want to be Guardian of your children if one is needed. You can also select the person that you want to served as Trustee for your children, to manage the property that you have left them, if one is needed.
2. An Advance Directive for Health Care
– What is an Advance Directive for Health Care?
– An Advance Directive for Health Care is a document that allows you to appoint someone who can make decisions for you and handle all medical matters in the event that something happens to you and you cannot communicate or make decisions. It also allows you to express your personal preferences for certain situations including “end of life” treatments. You must be eighteen years of age or older to sign an Advance Directive for Health Care, and it must be witnessed and signed by two witnesses.
– Why do you need an Advance Directive for Health Care?
– If you cannot communicate to your doctors your Advance Directive for Health Care can provide them guidance on how you wish your “end of life” treatment to be handled.
– Having an Advance Directive for Health Care is vitally important because it gives the person you have selected the authority to speak to your care providers and to make important medical decisions.
– If you do not have an Advance Directive for Health Care someone in your family will likely have to Petition the Probate Court to be appointed as your Guardian in order to make medical decisions for you. This process often involves significant legal fees and a hearing and a judge will ultimately decide your Guardian, not you.
3. A Financial Power of Attorney
– What is a Financial Power of Attorney?
– A document whereby you select someone to act as your agent, make decisions for you and take actions concerning your business affairs, property and money. A Financial Power of Attorney must be in writing, signed and witnessed by two competent adult witnesses. A Financial Power of Attorney must be notarized if you want to convey to your agent the authority to handle real property transactions.
– Why do you need a Financial Power of Attorney?
– A Financial Power of Attorney is very important. If something happens to you and you become incapacitated you will need someone to manage your financial affairs for you. By signing a Financial Power of Attorney beforehand you can select this person and give them the authority they will need if something happens. If you do not have a valid Financial Power of Attorney a member of your family will have to Petition the Probate Court to be appointed as Conservator for you. This process often involves significant legal fees, a hearing and a judge will ultimately decide who serves as Conservator, not you.
– If you are still living but unable to manage your affairs here are some examples of matters that the person named as your Power of Attorney can take care of on your behalf: sell or lease real property, manage bank accounts, pay bills, file tax returns, borrow money, hire a lawyer or accountant on your behalf, sue someone on your behalf, etc…