Who Needs A Will

Who Needs a Will? Part 6: If you get remarried.

Generally, if you had a Will made during a previous marriage, and then get re-married, you may need a new Will. You definitely need to review the old one.

As we have discussed before, if you are married and die without a Will, your spouse and children inherit all of your assets according to a formula set out in Georgia law.* Also, without a Will, your spouse has a good chance of being appointed as your estate’s Administrator and as the Conservator of your minor children.**

The potential problem is if you have a Will made during your previous marriage.

If it is like most Wills made by married couples, your former spouse probably is named as Executor, Trustee, and Conservator for your minor children. Your ex may even be the sole beneficiary, inheriting all of your assets.

Getting divorced can change that. By default, Georgia law effectively removes a former spouse from a person’s Will by treating the ex as if they had died before (“predeceased”) the person who actually died. This means that any gifts to the former spouse and their appointment as Executor, Trustee, or Conservator are not valid.

However, it is possible to override that default, and for your ex to still receive assets and authority under your Will. Georgia law has some “magic words” that, in a Will, allow your former spouse to remain in your Will.

Generally, if a Will is made “in contemplation of” divorce, then your Ex probably is still included in your Will. If this is a concern (and it usually is if you are divorced), then you should have a estate/probate attorney review your Will as soon as possible.

One other issue (among many) is making sure your children receive gifts under your Will. If you get remarried, and if your Will gives everything to your new spouse, then it is possible that they could decide not to leave anything to your children. If this is your situation, then you may want to talk to an estate planning attorney about setting up a trust in your Will to make sure your children receive something. It doesn’t have to be complex, but you may want to consider setting some gifts aside immediately (instead of after your new spouse’s death).

Divorce and remarriage are tricky enough without having to worry about probate. But dealing with these issues now is better than leaving your family to deal with them later. If you are remarried, and if you have a Will made during a previous marriage, take a few minutes to sit down and make sure your Will does what you want it to do.

*This seems like a good place to remind you that, if you are divorced, your former spouse is not considered an heir and cannot inherit. However, it is still possible for your ex to be named as your Administrator, although it is unlikely. And, if your ex is the parent of your minor children, then the Guardianship & Conservatorship issue becomes more complicated.

**Guardianship of minors is a complex issue, and Guardianship of minors whose parents have divorced and remarried is even worse. So we’re going to ignore those issues here.

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The statements in this blog are generalities, and exceptions exist. And, as always, this post is not legal advice. If you have any questions about this information, please contact us.

Who needs a Will? Part 5: If you get divorced.

Generally, you need to get a Will (or update your existing Will) if you get divorced.

Why? Because, if you don’t have a Will, or if you have a Will that was made during your marriage, then your former spouse (“Ex”) may still receive assets or authority.

No Will

First, to calm a fear many people have: if you are divorced and die without a Will, your Ex will not inherit anything from you. They are no longer your legal heir and will not receive property.*

But, as we have discussed before, if you do not have a Will, then anyone can be named as the Administrator of your estate and anyone can be named as Conservator of your children.

This includes your Ex.

If you don’t have a Will, then you don’t have input into these decisions. If you get a Will, then you do.

Old Will

If you have a Will that was made during your marriage, and then if you get divorced, the situation is more complicated. Depending on how the Will is worded, gifts to your Ex may be invalidated.

However, again depending on how the Will is worded, gifts made to your Ex may still be valid, and the person you just divorced may receive assets from your estate.

Also, your old Will may name your Ex as the Executor of your estate and as the Conservator of your children’s inheritance.

Obviously, many divorced people would not be okay with this. The majority of our divorced clients are not comfortable with this possibility.

To see whether your existing Will still gives your Ex assets and authority, have a probate attorney review it. It may be fine. Or you may need to get a new, Will or simply update the one you already have.

Summary

To recap: if you are divorced and don’t have a Will, your Ex won’t inherit, but still may have authority over your estate. To have input into this situation, you need a Will.

If you are divorced and have a Will made during your marriage, then your Ex may receive assets and authority, depending on how the Will is worded. To avoid this situation, you may need to revise your Will.

*However, if you are in the process of getting a divorce but it is not finalized, then your spouse is still your spouse and still your legal heir, and probably will inherit some of your stuff if you don’t have a Will. If you are in the process of getting a divorce and do not have a Will, it might be a good idea to call a probate attorney ASAP. You can get a Will while you are in the process of getting divorced. That Will can exclude your soon-to-be-Ex and can still be valid after the divorce is final.

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We hope you’ve found this information helpful. If so, please like and share this post.

The statements in this blog are generalities, and exceptions exist. And, as always, this post is not legal advice. If you have any questions about this information, please contact us.

Who needs a Will? Part 4: If you want to (help) decide who raises your kids.

Generally, you need a Will if you want to have input into who raises your kids.

Legally, children are a complex issue. Georgia probate law divides responsibility for minors into two areas: their property (real estate, money, and other stuff) and everything else (where they live, where they go to school, healthcare decisions, etc.).*

Authority for these two things is divided into two jobs. A “Conservator” has authority of the child’s property, and a “Guardian” has authority over everything else. The same person can be both the Guardian and Conservator, but that is not always the case.

Guardianship is relatively easy. If one of the child’s parents is alive, then that parent is (usually) automatically the Guardian. But if neither parent is available, then the Court will need to appoint a Guardian.

And nobody (usually) is automatically a child’s Conservator, including a parent. Therefore, if a child receives a significant amount of property (such as through inheritance), the Court will appoint a Conservator.

What does this have to do with Wills? A lot, actually.

By default, Georgia law has a priority list of who the Court might appoint as a Guardian or Conservator.

However, a parent can nominate a specific person to be Guardian or Conservator (or both) in a Will, and the Court will (usually) try to honor the parent’s nomination.** And if a parent’s Will nominates a Guardian or Conservator, then the Court usually not require a hearing or bond for someone nominated as Guardian or Conservator in a Will.

Therefore, if you want to have input into who helps raise your children, you should consider getting a Will.

*This is not the same as custody issues in divorce, which is an entirely separate area of law.

**Of course, there are exceptions, such as if the nominee is unwilling or unfit to do the job.

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We hope you’ve found this information helpful. If so, please like and share this post.

The statements in this blog are generalities, and exceptions exist. And, as always, this post is not legal advice. If you have any questions about this information or about what to do when a loved one passes, please contact us.


Who needs a Will? Part 3: If you want to decide who administers your estate.

You need a Will if you want someone you know and trust to administer your estate.

Administering an estate is a big job. If you do not have a Will, then the person who administers your estate is called an Administrator. Their job is to:

  1. Collect and preserve estate assets;

  2. Pay estate debts; and

  3. Distribute any remaining estate assets.

That’s a lot of responsibility and authority. Although the Administrator does not get to decide who receives assets or how much each person gets, they do get to make most other decisions, including how long the process takes and (sometimes) who might receive a particular item.*

While there is not a law that says who the Administrator must be, there is a law about who it can be, along with a prioritized list,** in case the Court has to choose between people who are fighting about who gets to do the job. (This happens more often than you might think.)

That list includes creditors. So anyone you owe money to when you die can ask the Court to be named as the Administrator of your estate. This list also allows almost any mentally competent adult, regardless of their relationship to you or your family.***

However, in a Will, you get to pick who administers your estate. This person is called an Executor, and they have the same job as an Administrator (collect & preserve, pay, and distribute).

In your Will, you can choose someone you trust to carry out your wishes according to your Will. And you can choose alternates, in case your first choice can’t or won’t do the job.

(And, if you are worried that naming a particular family member might cause hurt feelings or conflict in your family, you can choose a neutral professional—such as a CPA, financial planner, etc.,—to serve as Executor, instead.)

*So long as the item is not given to a particular person in a Will, and other conditions are met.

**See O.C.G.A. § 53-6-20

***See O.C.G.A. §§ 53-6-1 and § 7-1-242

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The statements in this blog are generalities, and exceptions exist. And, as always, this post is not legal advice. If you have any questions about this information or about what to do when a loved one passes, please contact us.

Who needs a Will? Part 2: If you want to decide who gets your stuff.

You need a Will if you want to decide who gets your stuff.

A lot of people think that, if you don’t have a Will, then everything goes to your spouse. Or that the estate Administrator decides how the property is divided. Or that you can just tell a friend or family member where you want everything to go. None of these is true.

If a person dies without a Will, Georgia law* dictates who receives assets, and how much. Basically, your assets are divided among your family in fractions based on who and how many family members are alive when you die.

More specifically:

  • Spouse and no children** - all to spouse

  • Children** and no spouse - equal shares to each child

  • Spouse and 1 or 2 children** - equal shares to spouse and each child**

  • Spouse and 3 or more children** - 1/3 to spouse, the children** split the remaining 2/3 in equal shares

  • No spouse or children** - all to surviving parent or parents in equal shares

  • No spouse, children** or parents - all to siblings** in equal shares

  • No spouse, children**, parents, or siblings** - all to surviving grandparent or grandparents in equal shares

  • And so on, and so on ...

This is the law. Friends, stepchildren, children’s spouses, college roommates, favorite charities, etc., get nothing. That crazy uncle who always thought Thanksgiving dinner was the best time to argue politics could receive the same as the nice aunt who taught you to drive. The child who hasn’t called you in 20 years could receive more than the grandchild who brought you donuts every Saturday.

Neither your family, friends, Administrator, lawyer, or anyone else can change this system of distribution.

However, with a Will, you get to decide who gets what. If you want a specific house, car, gun, ring, etc. to go to a specific person, you can say that in your Will. If you want to prevent certain people from inheriting anything (like your cousin that’s in jail) then you can do that in your Will. Or if you want to include certain people (like the friend who helped you through your divorce), you can do that, too.

You also can avoid leaving property to minors.

So, if you want to avoid the game of Inheriting Relative Roulette and decide for yourself who gets what, you need a Will. Otherwise, the Georgia General Assembly will decide for you.

*Specifically, O.C.G.A. § 53-2-1(c)

**Or their descendants, if they predecease you. If this is the case, things can get really complicated, including multiplying fractions. You don’t want to force your loved ones to have to multiply fractions, do you?

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The statements in this blog are generalities, and exceptions exist. And, as always, this post is not legal advice. If you have any questions about this information or about what to do when a loved one passes, please contact us.