Our trusts and estates practice consists of three divisions:
III. Guardianships and Conservatorships
I. Estate Planning
Estate Planning is the life-long process of building and protecting your estate during life and planning for its orderly distribution to your loved ones at death. Estate planning includes financial, insurance, and tax planning, and our firm works with your advisors in those areas of your life to produce the best possible result for you.
Your estate represents your financial legacy to your loved ones. A properly planned estate will be a blessing to those you leave behind; a poorly planned estate can be a curse to your heirs, tarnishing your memory to them forever – especially if they are forced into court to fight over your estate.
Our standard practice in every estate planning engagement – even for simple wills – is for the attorney to conduct a detailed initial estate conference with the client. In that conference, the attorney takes careful notes regarding the client’s family members and estate assets and asks questions to determine any potential sources of future conflict. As a result the attorney is able to provide informed advice to help the client adopt the best structure for his estate and to select those persons best qualified to manage the estate.
During the initial estate planning conference, the attorney also routinely discusses management of the client’s financial and medical affairs in the event of incapacity when no one is authorized to act for the client absent court authorization (such as a guardian or conservator). Most clients decide to execute a general (or financial) power of attorney and a health care directive to permit a person of their choosing to make these important decisions for them in a timely manner.
Under appropriate circumstances, as revealed in our estate planning conference, we expand our estate analysis and advice to minimizing estate taxes, asset protection, and special needs planning.
A. Minimizing estate taxes. Estate taxes are an unpleasant fact of life for clients with sizeable estates. The estate tax is really a second tax imposed on assets that have already been subjected to income tax. Our attorneys are experienced in various strategies that minimize such taxes, including tax formula wills and advanced gifting techniques that enhance the amount that can be given tax-free. Our firm prepares IRS Form 709 gift tax returns when necessary.
B. Asset protection. Clients are increasingly aware of the risks they face in everyday life. An otherwise simple trip to the grocery store could result in an automobile accident with devastating injuries to the client or some other person. This risk is increased substantially to business owners and professionals, such as doctors. The cost of causing or sustaining a serious personal injury is more than the typical client can bear, so they seek guidance for dealing with such risk. The starting point is an umbrella liability insurance policy and uninsured motorist coverage with the largest limits affordable. Business owners are advised to conduct their operations through a limited liability entity (LLC, corporation, or LLP). If further asset protection is sought, our attorneys will advise the client on additional measures that can be taken to reduce the risk to a level with which the client is comfortable. Any such additional action would only be taken to protect the client from future claims; we do not assist clients in avoiding current creditors or existing claims.
C. Special needs. When our estate planning conference reveals someone in the family with special needs, we encourage the client to address such needs in his estate plan. The nature of such needs vary, and the means for addressing the particular need is specifically designed to meet the facts of the case. If the person with special needs is drawing benefits from a needs-based government program or is expected to draw such benefits in the future, then the rules of such program must be met. This usually involves the creation of a special needs trust, which is covered in greater detail under Medicaid planning. Our attorneys have significant experience in addressing special needs and approach this subject with great care to make sure that the solution truly benefits the one with the special need.
II. Estate Administration
The course of estate administration depends on whether or not the decedent had a will.
A. With a will. When the decedent left a will, all major estate decisions are made in the will, such as naming the executor, setting forth the executor’s powers, and the property passing to each beneficiary. The first order of estate administration is to probate (or prove) the will so that its provisions can be implemented. This process begins with a petition to probate the will, which is usually filed by the person named in the will as executor. The petition and a copy of the will must legally be served upon the decedent’s heirs. Such service can be acknowledged by the heirs, but if it is not, then service is made upon the heirs by the sheriff, certified mail, or by publication, depending upon the residence of the person to be served. Objections to the petition must be filed in writing with the court within the time specified in the court’s notice. If no written objection is filed, then the will is admitted to probate; if a proper objection is made, the court schedules a hearing.
An heir cannot object to a will just because he does not like its terms. Some legitimate grounds for the will’s invalidity must be stated, such as mental incapacity, duress, undue influence, or improper execution. If a valid objection is filed, the heir will be given an opportunity to engage in discovery to find out what evidence is available to the petitioner. Such discovery would entitle the heir to require the petitioner to produce documents, answer written questions, or question the petitioner and other witnesses under oath before a court reporter. The petitioner would have the same discovery rights against the objecting heir.
Once discovery is concluded (usually after 2 to 6 months) the hearing is held, and each side presents its evidence to the court for a final decision. If the will is found to be the true will of the decedent it is considered proven, and letters testamentary are issued to the petitioner to administer the will. If the will is found not to be the decedent’s true will, it is rejected.
Most wills are not contested, and Georgia is one of the least expensive states in which to probate an uncontested will. In fact, if all of the family agrees upon probating the will, the petition can be prepared, all heirs can give their written consent, and a meeting with the judge can produce the letters testamentary necessary to administer the estate in a single afternoon.
Our firm handles all phases of probate. We prepare petitions to probate, represent clients in contested estates, advise clients on matters of administration, and conclude the estate with a petition for discharge. We also represent contesting heirs when good legal grounds for a contest exists or at a later date if the executor does not properly administer the estate.
B. Without a will. When the decedent fails to leave a will, all major estate decisions must be made by the probate court. These decisions include:
• Selecting the administrator for the estate
• Determining the beneficiaries under Georgia law
• Requiring the administrator to post bond
• Whether or not property should be sold and the terms of the sale
Leaving these important decisions to the court openly invites the two major obstacles to a successful administration: control and conflict. Control issues abound because the decedent did not specify who would be in charge of his estate. Family dynamics, unknown to the court, often enter the picture and pit family members against each other for control of the estate, which creates conflict over appointment of the administrator and every other matter that the court must decide.
If the family dynamics are more harmonious, the administrator can be selected by majority vote and be empowered to administer the estate without court supervision or bond by unanimous vote. With such families, it is also possible, with creditor consent, to divide the estate without an administration through order of no administration necessary.
In addition to their inheritable share of the estate, surviving spouses and minor children can each file a petition for a year’s support, which sets aside such amount of property from the estate as the court determines necessary to support them for one year. These petitions are especially helpful in cases where creditors claim most of the estate. The year’s support order takes priority over any other claim against the estate. (Year’s support petitions can also be filed against estates with a will, but the need for such petitions is usually less where there is a will.)
Our firm routinely handles estates without wills and provides counsel at every stage of the administration process. We have significant experience in representing petitioners to be appointed administrator, heirs contesting such a petition, petitions for no administration necessary, and petitions for year’s support.
C. Estate Tax Return. Our firm prepares estate tax returns on IRS Form 706 for large estates that are required to file such returns.
III. Guardianships and Conservatorships
When a person becomes incapable of taking care of himself or his business affairs, someone must step into his shoes and take over. If the incapacitated person has a power of attorney and health care directive, the persons named in those documents would be authorized to act for him. In the absence of such documents or if a conflict arises, a petition may be filed in the probate court for the appointment of a guardian and/or conservator.
A guardian manages the personal affairs of the incapacitated person. A conservator manages his financial affairs. Both are subject to court supervision through mandatory reports to the judge on an annual basis. The conservator must also post a bond.
Appointment of a guardian or conservator is a serious action that should only be taken if it is absolutely necessary and no reasonable alternatives are available. The procedure for appointment of these persons requires that the incapacitated person be examined by a court-appointed expert and formally be declared incompetent by the court after conducting a hearing on the issue. This process is highly traumatic for both the incapacitated person and the family. Such trauma is heightened if the incapacity is questioned or there are competing persons seeking appointment by the court and the hearing turns into a full-blown trial.
Our firm has handled numerous guardianship and conservatorship proceedings. We have represented both the petitioner and the allegedly incapacitated person. This experience enables us to render valuable counsel to any facing such a proceeding and to represent that person from start to finish.