What is a will? Well, at its most basic level, a will is an estate planning document in which you set out who you are, who will be be in charge of settling your estate when you pass away, and how you want the things you own distributed. A will should revoke any prior wills you have created and set guardians for your minor children, if any. Most people giving any thought to estate planning think, “All I really need is a will.” A will is often part of a well-thought-out estate plan. By itself, however, a will does not provide the sort of comprehensive protection you need for your family. A complete estate plan will incorporate other elements, depending upon your situation and your goals, to assure that you accomplish what you want to accomplish with your plan. Among these other elements may be a durable power of attorney, a health care directive, a HIPAA release, a trust, and/or many elements which work in concert with your will to protect you, your family, and your assets. Stepping up from the level of the most basic of wills, a more sophisticated will can be used to shepherd assets for minor children, to minimize estate taxes, and to provide for more structured distribution of assets to your beneficiaries according to your specific instructions. It is important to note that a will requires probate. That is to say, when you pass away (if you are relying on a will to distribute your assets) someone (usually, the executor you appoint in your will) must take your will to probate court and begin the probate process. It is fair to say the Georgia is not the worst state in the country for probate. Many states require a family to jump through more hoops and to pay more mandatory costs to complete a probate. The fact remains, however, that probate is a process – even in Georgia. That process carries with it several potential problems which many of our clients prefer to avoid, among them:
- Expense: The overall cost can vary widely and may include court costs, bond fees, appraisal fees, executor’s fees, and attorney’s fees.
- Delay: The probate process can last anywhere from a few months to several years.
- Lack of Privacy: Probate Court is an open court and its records, unless sealed by the court, are available for review by anyone who is 18 years of age or older and a U.S. Citizen. That means, depending upon how your will is drafted, members of the public may be able to get information regarding what your assets are, what they’re worth, and who is receiving them.
- Contest: Probate is a court process. People with an interest in your estate who disagree with the way it is to be distributed have a readily-available court through which they can object, subjecting your family to litigation over the settlement of your estate.
Despite the above considerations, a well-drafted will which is part of a comprehensive estate plan can be an effective way to accomplish your goals. The way to determine whether a will is the right tool for you is to discuss the whole picture (yourself, your family, your assets, and your goals) with a qualified estate planning attorney.