The last 3 surveys by the US Census Bureau support the timeliness of a discussion about reasons for a Last Will and Testament.
The US Census Reports show the population in the United States has grown to 331.4 million people as of the year 2020. At the same time, the number of older adults in the US has continued to increase as new birth rates have decreased.
Unless new birth rates increase in the years ahead, the number of older adults in the US will continue to increase until some intervening event stops your aging.
The end of life can frequently occur suddenly and without warning. If you have assets, a family, minor children, and anything else that will need to be dealt with upon your death, this short Report should prompt you to action. It may also be the best thing you’ve ever read.
Remember, you are not promised tomorrow – – no one is.
But you can plan for that unfortunate tomorrow and be ready when the “Grim Reaper” shows up on your doorstep.
So I invite you to keep reading.
As in any report discussing legal matters, this Report is not a substitute for advice from an attorney. If you should require legal or other advice, you should seek the services of an attorney or other professional.
Let’s get started.
Listed below are several reasons for having a Last Will. It will help explain some of the basic reasons for estate planning.
(1) YOU CAN DIRECT HOW YOUR ASSETS SHOULD BE DISTRIBUTED.
A recent survey indicates that approximately 66% of US citizens do not have a Last Will. One obvious reason is the reluctance of many people to even discuss death, much less plan for it.
Most states have a statute called the law of intestacy (“Intestacy Laws”). This law provides how the assets will be distributed for a person who dies without a will.
In the State of Georgia, the Intestacy Laws are pretty straight forward. For example, when a person dies without a will and is survived by a spouse but no children, the Intestacy Laws provide the surviving spouse is the sole heir and inherits all of the decedent’s property.
The Georgia Intestacy Laws also spell out the distribution plan for a decedent who dies with assets and decedents but without a Last Will.
Obviously, it is preferable to give direction in your own Last Will how you want your assets distributed, based upon your own family’s needs rather than relying on the Intestacy Laws. With a Last Will, you can treat each of your heirs however you wish.
(2) YOU CAN GIVE INSTRUCTIONS FOR THE GUARDIANSHIP, CARE AND EDUCATION OF ANY MINOR CHILDREN.
If you have minor children, your death will raise a question about who has the right to assume the custody of those children.
After the death of a parent, the surviving parent normally has the right to assume or continue with any custody of the minor children.
But if there is no surviving parent, then custody of any minor children can become a problem. If the parent dies without a Last Will or if the parent’s Last Will does not designate a guardian to assume the custody of any minor children, then the Probate Court will have to appoint a Guardian.
(3) A LAST WILL CAN AVOID HAVING YOUR ASSETS DISTRIBUTED ACCORDING TO THE INTESTACY LAWS OF THE STATE WHERE YOU ARE DEEMED A CITIZEN.
As indicated in Item 1 above, the Intestacy Laws will govern the distribution of your assets if you die without a Last Will.
Obviously, you would prefer to decide how you want your assets distributed upon your death. Your Last Will makes that possible.
(4) YOU CAN DECIDE WHO YOU WANT AS THE EXECUTOR TO MANAGE YOUR ESTATE AND AS THE TRUSTEE OF ANY TRUSTS CREATED IN YOUR LAST WILL.
The Executor is the person you name in your Last Will who is charged with the responsibility of collecting the assets of your estate, paying the estate’s debts and expenses and distributing the balance to your heirs as directed by the terms of your Last Will.
The person you select as your Executor can be anyone who you believe has the ability to perform the tasks required.
The Probate Court must approve the Executor and the Court has the power to require the Executor to post a surety bond unless the Last Will does not require it.
You also have the opportunity to set up one or more trusts in your Last Will for the benefit of your surviving spouse and any children. If so, you also have the right to name the Trustee for such trusts.
The Probate Court has the right to select an alternate Trustee in the event the person appointed as Trustee cannot perform his or her duties.
(5) YOU CAN MINIMIZE ANY FEDERAL OR STATE ESTATE TAXES, IF APPLICABLE.
For 2022, a federal estate tax return was required to be filed if an individual’s estate had a value of slightly over 12 million US dollars. For 2023 and 2024, this threshold was increased to almost 13 million US dollars.
The current Federal Estate rates are scheduled to end on 12/31/2005, when the exemption will revert to 5 million US dollars unless the US congress changes this amount.
If you have an estimated estate that will be subject to possible estate taxes, then an estate plan should be structured to minimize any estate taxes.
With the advice of counsel or other appropriate financial advice, preparation of a Last Will gives you an opportunity to plan the distribution of your estate in order to minimize any potential estate taxes.
(6) YOU CAN EXCLUDE ANYONE YOU DO NOT WANT TO RECEIVE A DISTRIBUTION FROM YOUR ESTATE.
As indicated in item one above, the Intestacy Laws of most states provide that if a decedent dies without a Last Will, the decedent’s assets will be distributed to the decedent’s heirs as spelled out in the appropriate state statute.
Without a Last Will, there is no opportunity to exclude anyone who is designated in the statute.
So if you wish to exclude someone from receiving any distribution from your estate, you must have a Last Will which can state the beneficiaries of your estate. Anyone not specifically designated as a beneficiary will not have the right to share in any distribution of your estate.
However, Georgia has a special provision dealing with surviving spouses and children, if any. Special rules apply in Georgia if you wish to disinherit a surviving spouse from receiving anything from your estate. You should seek the advice of counsel in Georgia for a further explanation of this special rule.
(7) YOU CAN GIVE INSTRUCTIONS FOR ANY CHARITABLE GIFTS OR DONATIONS YOU WISH TO MAKE.
Your Last Will can provide any charitable gifts you did not make during your lifetime.
A charitable gift will not only benefit the charity selected by you, but can possibly provide for the estate potential deductions against any estate taxes that may be owed.
(8) YOU ARE NOT PROMISED TO BE ALIVE TOMORROW.
As indicated earlier, your continued life and the continued life of everyone is not promised.
The importance of having a Last Will should not be ignored.
Don’t wait until it’s too late.
So, do what’s best for you and your family – make plans today to have an appropriate representative prepare your Last Will.
(This Article was created to provide you accurate and authoritative information concerning the subject matter covered. But this Article is not a substitute for the advice of an attorney. If you should require legal or other advice, you should seek the services of a licensed attorney or other professional.)
Richard McQueen
Attorney at Law
Atlanta Georgia
