I will begin syndicating the responses I give to certain estate and probate questions posted on the advice website Avvo.
We begin with a question regarding estate planning. I'll place the question here and then my answer after the "read more" break.
What is the process we need take on adding me to his deed, or doing a trust?
My dad has property in Ga., and it only has his name on it. At this time he has no will. He's 73 yrs old. We are wanting to put my name on the deed and he is wanting to do a trust will. If he does that type of will does he need to put my name on the deed? My mom is deceased. And there are three other kids besides me. I'm the one that writes out bills and does his banking for him. Basically looks after my dad.
In Georgia, most estate attorneys recommend use of a will rather than a living trust. Probate in this state is a simple affair, if the will is properly drafted, and living trusts are expensive to manage and administer during life.
The situation may differ when the testator knows she has 79 heirs.
In a recent case, we were called upon to probate a simple will, leaving an entire estate to the decedent's god-daughter. The problem? The deceased was one of twelve siblings, all of whom predeceased her. Not only this, but the decedent died at age 101, meaning that most of her siblings' children have already died.
The result has been that the decedent has 79 heirs at law. Why does this matter, given that there is only one beneficiary of the will? It matters because the Georgia Code requires service of the petition to probate upon all heirs at law, even if those heirs are not beneficiaries. And by "service," we typically mean a sheriff's deputy delivering the petition to the heirs' doorstep - although out-of-state heirs need only get certified mailings.
Living trusts are better estate planning devices in such cases. When the maker of a living trust dies, and the trust becomes irrevocable, the Georgia Code requires notice only to the beneficiaries of that trust, not to the heirs of the trust-maker (the "settlor"). OCGA § 53-12-242.
Tracking down 79 heirs is a daunting and expensive challenge. In our firm's present case, paying a little more to draft a living trust would have meant great savings for the decedent's heirs.
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.
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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