The Wall Street Journal posted this about leaving unequal shares of your estate to your heirs.

Among the advice given by the columnist is a recommendation to write one's reasoning for unequal estate shares in a will. Similarly, one could write a letter of intent.

Experience in a litigation setting shows that such clauses and documents rarely carry much weight in court. The reason is that they are typically drafted by the law office preparing the will. If the testator lacked the capacity to make a will, the court will often think, then yet another piece of paper the lawyer drew up does little to add to that capacity.

Practical experience shows that the single best way to leave unequal shares in your will is to tell your children (or other heirs) you're doing it and why. Nothing leads to estate fights quicker than surprises in a will. Similarly, a child that has had months or years to digest the fact that he is receiveing a lesser share (and who has heard "why" straight from the testator) is much less likely to file a suit.

Second to this is some recording or document that demonstrates capacity. A handwritten note or letter; a video tape; a recording of the conversation with the lawyer; or (in extreme circumstances) examination by a physician competent to evaluate mental health are all ways to head off an estate fight before it begins.

Daily Finance posted an article here that purports to explain "Why More than Half of Americans Don't have Wills."

Though the predictable (and perhaps question-begging) answer "we procrastinate and don't like to think about death" leaves the reader mildly disappointed, the statistics the article cites make it well worth perusing.

Among other interesting numbers is the survey result that "13% [of people] believe that their spouse and children will automatically receive the assets they have in the event of their deaths."

Experience shows that the above number is perhaps understated. Anecdotal reports from contacts of this firm also yield the disturbing fact that most married individuals believe their spouse will inherit everything when they die.

Unfortunately, this is entirely untrue. In no U.S. jurisdiction of which we are aware does the spouse automatically take the entire estate. And not only is inheritance not "automatic," but it also does not follow such a simple scheme. In Georgia in particular, the spouse and children share equally in the probate property (with the exception that the spouse never takes less than one third).

Often, the survivor of a married couple with children will find him or herself going through lengthy administration only to inherit a share of his or her own home, such that the house cannot be sold or mortgaged without the consent of mutual children - something that can be a hassle when the children are grown and an outright disaster if they are minors. 

With estate planning, as with other areas of law, a little knowledge is a dangerous thing. Wills and inheritance law is the specialty of Tanner Pittman, LLC, and we are skilled both in drafting estate plans to our clients' wishes and in explianing them in a way that non-lawyers find accessible. 

In the State of Georgia, the statutory doctrine of "year's support" can utterly defeat some estate plans. The problem can be voided by careful planning and the use of a revocable, inter-vivos trust (also known as a "living trust.")

What is year's support?
In Georgia, year's support is the right of a surviving spouse or minor child of a decedent to take property from the estate. How much property? That question is not easily answered and is the source of an enormous amount of estate litigation . The technical answer is "an amount sufficient to maintain the standard of living" of the surviving spouse or minor child for one year. Ga. Code Ann. § 53-3-7 (West)

It is for the courts to determine how much money or property is needed to accomplish this. Such determinations are costly and time-consuming exercises in litigation and trial work. They typically involve months of preparation and at least one appeal. Furthermore, experience shows that some (typically non-lawyer) probate court judges in Georgia see year's support as a convenient way of administering an estate and will award all estate property to a petitioning survivor. (Despite settled precedent on the question. See Taylor v. Taylor, 288 Ga. App. 334, 337 (2007)).

A seemingly inescapable dilemma.
In any event, there is no way to deprive a spouse or surviving minor child of year's support in a will, by agreement, or otherwise. This is true even if (for example) the spouses have been married for only one year and the will clearly states that only the children from the testator's previous marriage are to receive his or her estate.

Solution: there is no estate.
To avoid these problems, one must simply die with no property. Though a seemingly drastic solution, it can be accomplished without also requiring that one's last check bounce. Attorneys use an agreement called a revocable, inter-vivos trust or "living trust" in order to make sure one can enjoy one's property during one's lifetime but have complete say over how it is distributed after one's death.

A "living trust" is defined in more depth at the link below. But the important aspect of the trust for our purposes is that <b>it</b> and not the settlor (the person who made the trust) owns the property. When the settlor dies, the property in his or her estate cannot be taken as year's support because there is no property to take: the trust technically owns it.

Conclusion.
In Georgia, where wills are still the predominant method of estate planning, there is nevertheless a fine argument to be made for drafting a living trust in order to avoid the necessity of paying year's support. Even if year's support should be paid and the testator wants to provide for a spouse and minor children, a living trust can allow the testator to establish the amount he or she wants to grant the surviving family and not let it become a matter for costly, emotionally taxing dispute in probate court.

Tanner Pittman, LLC is an estate planning and probate law firm that regularly advises clients on living trusts, year's support, and a range of other complex estate planning questions. Feel free to contact us today about your own such issues.

Clients making last wills and other estate arrangements know that they are creating very meaningful documents for their families. Oftentimes, wills are accompanied with family "love letters" expressing in plain terms the clients' thoughts that occasion their own deaths.

One client in particular did some research before drafting his own will and discovered that common practice in the last century was to begin a will with a Christian prologue rather than the modern, dry "this is my will, revoking all other wills before it, period." I'll publish his preferred language below.

My question for the client (or attorney) reader is: would you like to be approached by your lawyer about inclusion of a religious or Christian prologue to your will, or would that sound to your ears like your lawyer were proselytizing? How best would the question be asked?

The comment field is open. Thank you for your responses.

In the name of God, Amen. I, John Q. Testator, of the town of Anytown, Some County, Georgia, being weak in body, but of perfect mind and memory, thanks be to God, calling to mind the mortality of my body and knowing that it is appointed for all mankind once to die, do make and ordain this my Last Will and Testament. That is to say, principally and first of all, trusting in Jesus Christ for my eternal salvation, I give my soul to God who gave it to me, and my body I commend to the earth to be buried in a decent Christian burial at the discretion of my Executor, nothing doubting but at the general resurrection I shall receive the same again by the mighty hand of God. And as touching such worldly state wherewith it has pleased God to bless me in this life, I give, demise, and dispose of in the following manner and form.

Perish the thought for attorneys who make their livings helping clients avoid estate taxation.

That said, the safe money is on continuation of an estate tax, especially as government debt load continues to climb and successive congresses seem powerless to stop it.

At the vanguard of abolishing the estate tax, however, is Dick Patten of the American Family Business Institute. Reuters recently ran a story reporting that 131 members of Congress have signed his pledge to vote to repeal the so-called "death tax," and a bill currently before the House to do the same has 168 co-sponsors.

Tanner Pittman, LLC assists clients in estate tax planning as well as general estate and will planning. We draft estate plans that seek a maximum of tax advantage for clients, regardless of where the political winds will take us.