Types of Georgia Estate Planning Documents

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estate planning Every person should consider their estate planning needs individually and in conjunction with their marital and family dynamics.  Very generally, estate planning documents can be categorized as either documents governing one's estate while he or she is alive but incapacitated and documents directing the administration and disposition of assets after death.  The basic documents covering incapacitation planning typically consist of "powers of attorney", "advanced directives" or living wills. The basic documents providing for post mortem administration consist of wills and testamentary trusts.

1.  Last Will & Testament

Your will is the legal document in which you provide for the disposition of your "probate" assets after your death.  If avoidance of probate is a paramount objective, then a Revocable Living Trust can also be executed as a will substitute.

Your "probate" estate, as opposed to your "non-probate" estate, consists of all property governed by the terms of your will.  Generally, these probate assets consist of real estate, financial instruments, personal property and financial accounts titled in your name solely, or, jointly with one or more people but without any rights of survivorship.  Also included in your probate estate are funds payable to your estate after your death and property over which you have a power of appointment at the time of your death.  If you own property jointly with a right or survivorship, or if you own property with a beneficiary designated in the instrument itself to take the property after your death, then you probably hold some "non-probate" assets.  Non-Probate assets are not controlled by your will and pass by operation of law at the time of your death to the joint owner, named beneficiary, or remainderman.  Non-probate assets may include, but are not limited to the following:

  • Jointly owned assets with survivorship rights, such as joint bank accounts, stocks or real estate;
  • Retirement accounts payable by beneficiary designation;
  • Life insurance policies payable to a designated beneficiary;
  • Property held in trust during your life; and
  • Property in which you hold a "life estate."

Property ownership and beneficiary designations must be carefully coordinated with your will to minimize income and estate taxes and assure that the proper persons receive their inheritances.  Your Georgia will should be updated regularly and if life changes occur.

2.  Financial Power Of Attorney

The Financial Power of Attorney appoints an agent with very broad powers to conduct your financial and business affairs on your behalf. Because the powers granted to your agent, or "attorney-in-fact", are so broad and absolute, it is extremely important that the person you choose be someone whom you trust completely. If you desire, the attorney-in-fact can even be delegated the authority to make gifts of your assets.  Our office generally drafts a "springing" financial power of attorney, meaning that the authority of the attorney-in-fact "springs" into existence only upon your becoming incapacitated. Because the power is "durable" it remains in effect even after you become incapacitated, but can be revoked by you once you regain your faculties. Under no circumstances, however, is the attorney-in-fact permitted to act after your death.

3.  Living Will

Georgia recognizes the "living will" by which a competent adult may direct that life-saving procedures be withheld or withdrawn when the person is suffering from a terminal condition and death is imminent.  By executing a living will, you instruct medical providers of your wishes concerning life-sustaining procedures in the absence of your ability to give directions yourself.  A living will, therefore, allows you to arrange for a non-prolonged death, without potential suffering, where the application of life-sustaining procedures would serve only to postpone the moment of death.  Your living will only comes into effect if two doctors certify that you have a terminal condition, or if you are in a coma or persistent vegetative state with no reasonable expectation of recovery.

4.  Durable Health Care Power Of Attorney

The durable health care power of attorney (DHCPOA), also called a "health care agency" or "health care proxy" allows you to designate an agent to make health care decisions in the event of your incapacity.  The term "durable" means that it remains effective even after your incapacity. A DHCPOA grants broader authority than a living will which becomes effective only in the event of a few specific medical conditions.  While the DHCPOA does not impose a duty on your agent to exercise the granted power, if exercised, the agent is required to demonstrate due care in accordance with your wishes.  The DHCPOA also can be written to designate the guardian of your person, should one become necessary and to control post mortem issues (anatomical gifts, autopsies, disposition of the body).

If you would like to learn more about a durable health care power of attorney, you may consult the Official Code of Georgia Annotated, Sections 31-32-6 et seq.

5.  Advanced Directive for Health Care

In 2007, the Georgia legislature passed a new Advance Directive for Health Care Act.  The law authorizes a new form known as the Advanced Directive for Health Care, which combines provisions of a living will and a durable power of attorney for health care.  The new form has four parts.  Part One allows you to choose a Health Care Agent and addresses decisions to be made after your death, such as autopsy, organ donation, body donation, and final disposition of your body. Part Two governs your treatment preferences in the event of a terminal condition or a state of permanent unconsciousness.  Part Three allows you to nominate a person to serve as your Legal Guardian in the event a Guardianship is ever needed.

If you would like to discuss estate planning, then Charles Scholle can help.  Since 1995, he has represented Georgia individuals and families seeking to enjoy the piece of mind in knowing that your estate affairs are in order both during their lives an upon their deaths.  Moreover, Charles Scholle can assist in helping Georgians minimize their estate and gift tax liability via legal, established trust vehicles and planning techniques. If you would like estate planning advice, then please contact Charles Scholle for a free consultation today.

From a main office in Gwinnett County, he represents clients throughout Metro Atlanta and the state of Georgia.  To learn more about your rights and your options, please contact the Law Offices of P. Charles Scholle online or call toll-free at 1-866-972-5287 or in Atlanta at 770-717-5100.