In addition to this publication, Tanner Pittman, LLC can also be found at the attorney search and evaluation website Avvo.com.
In particular, we recently published a legal guide on the topic of administering uncontested estates in Georgia. Continue checking Avvo for forthcoming legal guides from this firm.
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.
This blog hosted a write-up of the estate of Huguette Clark, the hundred-millionaire heiress to the fotune of a Michigan copper baron here.
Well known Chicago estate planning attorney Joel Schoenmeyer, author of the blog Death and Taxes, derives some lessons from the Clark estate (or more precisely the Clark estate plan) in an excellent article here.
As stated in my previous post, the Clark estate was rife with warning signs that a dispute could come after the testatrix' death. Schoenmeyer distills the typical signs of a looming will contest into a few points in his article. Paraphrasing, these are
1. There are potential questions about the testator's mental capacity.
2. The testator has strained relations with his closest relatives.
3. The beneficiary of the will plays a role in having it written.
4. A non-relative fiduciary (e.g. the drafting attorney) is a beneficiary of the estate.
Schoenmeyer adds some advice to would-be estate planners on how to cover their legal anatomy when the above warning signs are present. To which, from arduous experience, I can add only my "amen."
Tanner Pittman, LLC is experienced in preparing estates that do everything possible to ward off potential will contests and, when the need arises, to defending estates from contesting "heirs."
In addition to this blog, Tanner Pittman, LLC also publishes content at the website estateplanninglawfirms.com. Recent titles include
Providing For Handicapped Heirs In Your Will With a Special-Needs Trust
Avoiding Year's Support Litigation in Georgia Using Living Trusts
The Pitfalls of Insolvency and Gifting to Relatives when Estate Planning
Trust and estate law contains a fiction known as the "fertile octogenarian," the application of which is limited to jurisprudence surrounding the obscure Rule Against Perpetuities and has had its greatest impact on modern life in the context of law school exams.
We live, however, in exciting times full of legal innovation and can now announce the possibility of an actual fertile nonagenarian in the person of famous-for-being-famous Zsa Zsa Gabor. Gabor's husband, Prince Frederic, is apparently arranging for the birth of her second child, to be had (via a surrogate mother) at age 94. Trial and Heirs has more. (Hat-tip to the Minnesota Estate Planning Blog for clueing us in.)
I intend on using this example on the next retiree client who challenges the provision in my will that states it is made "in contemplation of possible future birth or adoption." (A thoroughly wise clause to include but one that tends to trouble clients older than normal reproductive age).
Tanner Pittman, LLC is an estate planning and probate law firm that is familiar with the proper application of the Rule Against Perpetuities. Feel free to contact us today about your own estate issues.
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.
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.
This firm has already seen one case where the client sought to proffer Facebook evidence. Given the prevalence of that website as a medium of communication, it will only be a matter of time before Facebook evidence becomes an issue in probate and estate litigation.
Facebook comments and statuses are classic examples of hearsay evidence, but they generally may fall under one of several hearsay exceptions (notably, statements of party-opponents in probate litigation).
It is interesting to see the way in that Facebook evidence is being sifted by the country's appellate courts. Though not a Georgia probate law case, the case of State v. Eleck is one in which the appellate court agreed to exclude Facebook conversations as evidence, despite that they were crucial to the state's case. As part of its reasoning, the Connecticut Court of Appeals cited the "general lack of security of the medium," the implication being that someone else could have broken into the alleged declarant's Facebook account and posted the messages.
Chicago evidence law Professor Colin Miller disagrees with the appellate court's reasoning in an excellent blog post here. My sympathies are with Mr. Miller. In an age where the majority of a person's communications in a day may actually be by electronic means, it should be left to a jury to decide the likelihood that a particular communication was the result of alleged "hacking" into the declarant's account.
At Tanner Pittman, LLC, we combine adroit knowledge of trial skills and evidence law with expertise in estate planning and probate to bring value to our clients in will and estate contests.
UPDATE: The only Georgia case that seems to deal heavily with the use of Facebook evidence is the criminal stalking case of Placanica v. State. That case, however, does not set forth any new law regarding the admissibility of such evidence.
A writer for the New York newspaper the Times Herald-Record commented Monday on the cost savings from using living trusts as vehicles for disposing of an estate and avoiding probate.
Since 1991, the article noted, a living trust has been a better bet in that state because of attorneys' high fees for probating - topping 3% of the gross estate.
Not so in Georgia.
Here, a typical represented probate case costs between $1,000 and $2,000 in attorney fees. And many estates can be successfully probated without the need for attorney representation. I have learned that other state bars' practice of charging a set precentage of the estate size is the product of what can be characterized as legalized price setting. That is, the state bar as a whole dictates the fee, and all attorneys must take it.
So living trusts are often not the cheapest route to handling an estate in Georgia.
But are they ever called for?
The article above-cited states a reason they may be. It notes that disinherited heirs (say, children) need not be given notice of a trust's operation, whereas probate of a will contains a notice requirement. So, if you want to disinherit your children, the argument seems to go, prefer a trust because you won't have to send them a ticket to an estate contest by certified mail.
Frankly, that reasoning sounds too clever by half. It is the rare disinherited child that doesn't know of his or her parent's death and estate disposition, and trusts can be challenged in court every bit the same as wills can.
A recent case handled by Tanner Pittman, LLC, however, may show a prominent exception in which a living trust could serve as a device to protect the estate. In that case, the disinherited challenger to the will was a distant half-sister who had not seen the testatrix in years. In that case, it was in fact the statutory notice requirement of probate sent to this half-sister that kicked off the will challenge. Had a living trust been drafted, it's possible expensive probate litigation could have been avoided.
Tanner Pittman, LLC drafts living trusts, wills, and other complex estate planning documents, and our firm is prepared to advise clients on whether a trust or a will is the best device for carrying out their estate planning needs.
Tanner Pittman, LLC is a West Georgia law firm that specializes in estate services, civil litigation, and legal transactions.
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