TOP TEN GEORGIA PROBATE TERMS YOU SHOULD KNOW & HOW THEY CAN ENTER YOUR LIFE UNEXPECTEDLY
The legal world is full of terms and definitions the general public does not know - either because they’ve never heard them or because someone has never explained them in a way they can understand. Your Hometown Attorney strives to not only represent our community, but educate it. Below, we cover a list of actions and terms used in the context of probate court in Georgia and how they could suddenly become very relevant to you or your loved ones very quickly.
1. Power of Attorney
A power of attorney is the document where a principal (the person making the document) declares their agent (the person who will be in charge of their financial affairs).
In Georgia, we now utilize a standard statutory form for financial powers of attorney. The form includes information such as the name and contact information of the principal and the agent, declares a back-up agent, says what the agent can and cannot do when it comes to the principal’s financial affairs and assets, and declares when the power of attorney becomes effective (immediately or at some future date).
By working with an experienced estate planning attorney, you will have each of the provisions explained to you so that you fully understand what you are (and are not) allowing your agent to do on your behalf financially. You should also be given the opportunity to include any specific guidance or direction you wish your agent to abide by in the handling of your financial affairs. It is important to note that after you pass, your power of attorney ceases immediately after death and what happens next will be determined by the remainder of your estate plan - your will or your trust.
2. Conservatorship
Should you ever be determined by a healthcare provider or your loved ones to no longer be capable of making responsible financial decisions for yourself or to have lost the capacity to direct your financial affairs, they may file a petition with the local probate court for conservatorship. They may or may not hire an attorney to represent them. If your loved ones cannot agree on who should be the conservator, there may be multiple attorneys involved.
The court will consider any and all evidence presented by your loved ones in determining: a) whether or not you possess the capacity to handle your financial affairs, and b) if you do not possess such capacity, who should handle those affairs on your behalf. The Court will often appoint a Guardian ad Litem to speak with your loved ones, you, and any healthcare providers to help summarize information and data and make a recommendation to the court in regards to your capacity and what individual should serve as your conservator.
While there are statutory guidelines for conservators, this process (and the associated court fees and expenses) is avoided by having a valid Power of Attorney in place before you reach a state of incapacity. Furthermore, even if they decide to take it before a Court for one reason or another, you will have named who you want to serve as your conservator (and who you would want if they were unable to serve) to provide clarity and guidance to the Court reviewing your case. Like the power of attorney, the conservatorship ceases at death and the remainder of your estate plan will determine what happens next.
3. Advance Healthcare Directive & Living Will
Much like the Power of Attorney discussed previously, an Advance Healthcare Directive is the same, except it applies to your healthcare. You, as the principal, declare who you wish for your agent to be, what your general wishes are as to your healthcare, and when you want it to be effective (immediately or at some future date).
We often receive questions about a “Living Will.” Georgia essentially combined these two documents when it created and offered a second statutory form for purposes of medical healthcare guidance in the form of the Advance Healthcare Directive. The Living Will goes into more detail than simply declaring the agent. Georgia’s form, especially when prepared in consultation and with the guidance of an experienced Estate Planning Attorney, will include as much or as little guidance as you wish for your healthcare treatment plans. This document can be as informative as you wish for it to be when it comes to what medications, vaccinations, and treatments you are willing to receive or undergo, but the standard form will not include much detail as it only provides general guidance in dire circumstances.
It is important to note that you will always be provided with “comfort care,” even if you select an option to receive little to no treatment. Like the Power of Attorney for your financial affairs, an Advanced Healthcare Directive ceases at death and the remainder of your estate plan will dictate future events and people.
4. Guardianship
As with the conservatorship, when you find yourself in a position where you can no longer provide communication about your healthcare and treatment, your loved ones will have to petition a court to make these decisions on your behalf. This is accomplished through a Petition for Guardianship.
The same concerns are present here as with a conservatorship. Your loved ones will have to at a minimum pay court fees and expenses and wait out time they may not have in order to get a court order to represent you and your health. They will have no guidance from you, other than what, if anything, you may have communicated verbally prior to your incapacitation. As humans, we often change our minds and what we communicated at one point in time (say as a young parent) may not be the same as what we want later in life (as a widow), for example. The circumstances of our spouses, children, and friends may change and we may not want what we once did, including who we want to make decisions on our behalf.
Similarly as to a conservatorship, anything filed into the Court becomes a matter of public record. This could include information about the status of your mental or physical health, motions and orders containing detailed information from hearings held between your loved ones, a report of the Guardian ad Litem and any evidence presented. Your very intimate and private matters, including your finances, assets, and debts, become a matter of public record and a matter of emotional and financial stress for your loved ones. All this at a time when their thoughts, efforts, and energy should be focused on getting you the treatment you want and deserve. The Guardianship, like the conservatorship, ceases at death and the remainder of the estate plan determines who will do what next.
A NOTE ABOUT OTHER CONSERVATORSHIP AND GUARDIANSHIP PROCEEDINGS FOR MINOR CHILDREN
If you have minor children at the time of your passing and they are left without a legal guardian (the other parent or individual(s) named in your will or trust), and/or you have not already executed secondary documents for your children declaring these individuals, they will either be subject to the Georgia Department of Family and Children Services (DFCS) and Georgia’s juvenile courts or subject to the purview of the probate court under petitions for conservatorship and/or guardianship. As above, in the case of probate court, someone would petition to serve as their conservator (to see after their financial needs) and/or guardian (for their legal and medical needs). This could be anyone the Court deems as fit, willing, and able to serve.
This could mean your children are cared for by individuals you would not want involved with them for various reasons. This could mean your children are being raised in a way completely contrary to how you would want them raised. While a Guardian ad Litem would be appointed to review the evidence and speak to your children to determine their own wants and needs, the Guardian ad Litem is not going to know specifics about what you wanted for your children - your legacy. Furthermore, this portion of the process could be complicated depending on the age of the children and their level of mental, physical, and emotional development as they may not be able to offer any insight to the Guardian ad Litem themselves. The Guardian ad Litem and the Court will only be able to review the evidence as it stands at the time it is presented. Your children could be left unprotected once the final orders are granted in the case.
This is why proper and complete estate planning is necessary for any parent with minor children, not just those “who have a lot of stuff or a lot of money” or “the elderly.” You protect your children while you are here. A complete and well-thought-through estate plan, will protect your children when you are no longer here.
5. Will
If your Estate Plan includes a will, this document will provide details about you, your marriage(s), define your family, including any children, name the person who will handle your assets and debts following your passing, and declare who gets what if anything is left. If you have minor children, this is where you could name guardians and/or conservators for your children, including any potential secondary and tertiary choices. You could also create a testamentary trust within your will that could provide for the financial well-being of your children or other beneficiaries. A will comes into play after your death and is subject to the review of the probate court, including any potential contests from heirs at law as well as beneficiaries (discussed in more detail below).
If you had a will-based estate plan, your loved ones will either attempt to probate your will on their own or consult with a probate or estate planning attorney to determine their next steps, which will likely include multiple trips to the attorney’s office and probate court to see that your wishes are fulfilled. Georgia has very specific requirements for a will to be considered valid, and from there, what process of probate you may use depending on the method(s) used to execute your will. An experienced estate planning attorney, like Your Hometown Attorney, will make sure to draft and help you execute a will-based estate plan that will make it easiest on your loved ones after you have passed.
If you had a trust-based estate plan, the individuals named can begin the trust administration immediately without the need for involvement from the probate court.
6. Probate
If you created a valid will as a part of your estate plan, your loved ones will have to petition the probate court to admit your will for probate and officially declare the executor of your estate. There are two types of probate in Georgia: solemn form and common form. These will be discussed in depth in a future post. Either way, trouble can begin for your loved ones at the outset as they may contest your will or even who you named as your executor.
The probate process is a long, extensive, and quite frankly expensive process, even without the involvement of anyone contesting any provisions of the will. According to statistical analysis, the average probate costs in Georgia with no contests can range from $1,500.00 to $3,000.00, with a contested matter ranging from $5,000.00 to more than $10,000.00. The investment of time and waiting on procedural requirements can be at a minimum eight months and range to many, many years.
The financial and emotional strain this puts on loved ones after losing you is a major consideration for many of our clients that elect to do a trust-based plan. Not to mention the level of expediency and privacy a trust grants as it takes effect immediately without involvement from a court. If there is a relative, including a child, that you would not want to receive from your estate directly, or you would have wanted there to be provisions because they have a history of making poor decisions, or because they are a minor (under the age of 18), you would at a minimum want a will in place, with the more preferred and guaranteed option of a trust.
7. Intestacy
If you pass without a will in place, your loved ones are unable to find your will, or your will is found to be invalid, you will be considered to have died “intestate” (or without a Last Will and Testament, emphasis being on “testament”). Your estate will be subject to a different procedure and statutory requirements than if you had a valid will in place.
Your heirs at law, or who will receive your estate, will be determined by Georgia’s intestacy laws, which declare a certain order and percentage that goes to what relatives based upon their level of closeness in relation to you. For example, if you were to pass and your spouse and children survive you, your spouse would not inherit everything from you directly. Instead, your spouse would receive a 50% interest in your estate, and the other 50% would be divided evenly among your children. If you have children that predecease you, but they had children, the inheritance laws, including percentage breakdowns become much more complicated.
Heirs at law differ from beneficiaries in that who the heirs at law are is determined by statute, whereas beneficiaries are people (or organizations) you specifically name within your will or trust. If probate court is involved, which it will be unless you have a living trust with well-planned after death provisions, heirs at law always have a right to notice of the proceedings and to object to any part of the proceedings including who serves as the executor, whether or not bond will be required from the executor, whether or not accounting is required, as well as who will receive what. If you had a will, whether or not it was valid, your beneficiaries will also receive notice of the proceedings and will be given the same opportunities to participate in probate proceedings as the heirs at law.
8. Administration
If you are determined to be intestate, your loved ones will have to petition the court for administration of your estate. The process and cost is very similar to that discussed in the probate section above if the administration is uncontested. However, there is much more required of your loved ones in the process, including helping track down relatives they may or may not know so they can be notified of the estate administration taking place.
All individuals who are determined to have a right to notice will also have a right to participate in the process of the administration of your estate, meaning the administration of your estate could become contested and expensive very quickly. This could put your spouse in dire straits as he or she tries to cope with losing you and fight any relatives who have “come out of the woodworks.”
9. Year’s Support
There is some potential relief and ease granted to the spouses and minor children of those who pass in the form of a Petition for Year’s Support. Despite its name, Year’s Support is a permanent award of property from a decedent's estate to the decedent's surviving spouse, surviving minor children, or both. The surviving spouse of the decedent can apply for year's support unless he or she has remarried after the decedent's death. It can also provide some financial relief to your spouse and minor children by allowing a waiver of real estate taxes for one year.
This process, too, however, does not come with guarantees or without expense, especially if there are minor children involved, as the involvement of minor children will require the appointment of a guardian ad litem to review the estate and any evidence to make sure that the children’s best interests are being protected. It, too, can result in contests and lengthy and expensive litigation at a time where your spouse has lost you and your young children have lost their parent.
10. Guardian ad Litem
In any matter before the probate court where the best interests of a party will need to be determined, a Guardian ad Litem will be appointed by the Probate Court. This individual will be appointed in all matters involving a conservatorship, guardianship, or minor children. This individual will be charged with speaking to the individual they are appointed to represent, speaking with healthcare professionals, schools, and reviewing any and all evidence before the court.
After reviewing all the evidence, he or she will present a report to the Court, either in writing, orally, or both. This report will summarize the Guardian ad Litem’s findings and recommend an outcome to the Court on the Guardian ad Litem’s opinion of the evidence reviewed. A Court is not required to follow the recommendations made by the Guardian ad Litem, however, their findings, opinion, and recommendations are often weighted heavily by the Court in issuing its orders.
Ideally, everyone will develop a complete Estate Plan that would keep himself or herself, his or her loved ones, and his or her assets out of court, but that is not always the case. If a complete plan is not developed, your loved ones could find themselves fighting for you, or even against each other, before you have passed away. This can be extremely difficult for everyone involved, including children, spouses, siblings, parents, and even yourself. Cases that come before the probate courts in Georgia involving individuals often come at emotionally tolling times, times when people are experiencing a range of emotions including the following: confusion, loss, grief, stress, anger, and a loss as to what to do and how to do it.
Having a complete Estate Plan in place including your Power of Attorney, Medical Healthcare Directive and/or Living Will, Will and/or Trust can help avoid unnecessary emotional and financial stress on your loved ones. They avoid attorney’s fees, court expenses, expending time, and receive peace of mind knowing what you want and how you want it.
Your Hometown Attorney has the experience necessary to help provide some comfort and relief in these times and guide you or your loved ones through the probate process. However, we also have the knowledge and experience to help you and your loved ones avoid the probate court altogether. Whichever option you choose for yourself and your legacy, know we are here to guide and assist you along the way. If you have questions about what Estate Planning is, click here. If you have a need for representation in Probate Court or Estate Planning, contact us today by calling 706-359-3332. We will be happy to meet with you and help you determine the best course of action.