Heirs at Law in Georgia
As a Cobb County probate lawyer, the question often arises: “What happens if I die without a will in Georgia? Who gets my stuff?”
The following outline is a summary of the Georgia law that determines who are heirs at law of a decedent (the person whose death without a will (intestacy)) requires the administration of his or her estate). The actual statute may be found in the Official Code of Georgia Annotated (OCGA) Section 53-2-1.
The heirs are:
- The spouse if there are no children (and no children who died before the decedent leaving living children of their own or descendants of living children)
- The spouse and children if there are children, and the children of any child or children who died before the decedent (as well as the deceased child’s descendants if any of the deceased child’s children also predeceased the decedent)
- The parents if there is no spouse or children, descendants of deceased children, grandchildren, etc.
- If no spouse, children, descendants of children, or parents survived the decedent, the brothers and sisters of the decedent and the descendants of any deceased brother or sister who predeceased the decedent
- If none of the above were living at decedent’s death, the grandparents
- If none of the above, uncles and aunts and descendants of any deceased uncle or aunt, but if all uncles and aunts are deceased, then first cousins share equally, rather than siblings taking their parent’s share
The more remote degrees of kinship are determined by a mathematical formula involving the relative in question and the closest common ancestor. If you have gotten this far, please consult OCGA sec. 53-2-1(b)(8). You may also need the assistance of a Georgia probate attorney. This information is also available in the form of a flow chart.
SOURCE: Athens-Clarke County.
By: Steve Worrall, Marietta GA special needs attorney
As a Marietta special needs attorney, I’m often asked, “What exactly is a Special Needs Trust?”
For starters, a special needs trust is a legal entity created to hold assets of a person with a mental or physical disability. The trust names a trustee whose job is to manage the assets and distribute them according to the provisions of the trust. There are specific limitations on the way assets can be distributed so that they do not disqualify the beneficiary from eligibility for government programs.
There are two primary types of special needs trusts. They are:
Self Settled Special Needs Trusts
In a self-settled special needs trust the assets in the trust belong to the beneficiary. For example, if the person becomes disabled due to the negligence of a doctor or car accident, it is possible that the beneficiary received a settlement as a result of litigation. In this case, a self-settled special needs trust would be created for the beneficiary to receive and hold the settlement funds in order to preserve government benefits.
Third Party Special Needs Trusts
A third party special needs trust is created by a third party with assets that belong to the third party. For example, the parents of a child born with Down syndrome or autism might create a special needs trust for their child as a part of their overall estate plan. In the case of a third party special needs trust, family members may make lifetime gifts to the child.
Distributions for Special Needs Trusts
In order to preserve government benefits, it is important to direct the trustee not to pay for services that are provided by a government agency. If done correctly, the assets in the special needs trust will not be counted as a resource. The trust must authorize distributions only for special or supplemental needs. Some examples of this might include dental care, specialized therapy, and services of a caregiver. Improper distributions of a special needs trust can cause a loss of government services, so it is critical that the trust is set up and then managed properly.
Who Should Create a Special Needs Trust?
Not all Georgia estate planning attorneys have the training, expertise or knowledge to create a special needs trust. You should consult with an attorney who is experienced in creating these trusts and who knows how to properly advise trustees.
‘It’s the time of year…time for all the snowbirds to take flight,’ says Marietta Wills Lawyer
By Steve Worrall, Marietta wills lawyer
Snowbirds are traditionally known as people who take flight every winter heading south to a warmer climate. However, in today’s mobile society, more and more retired people reside in more than one state during the year for reasons other than the weather. Who can resist those grandchildren?!
If you fall into the “snowbird” category, it is important for you to think about whether your estate plan is going to work for you as you planned. When it comes to planning for a dual residence client, it is important to address issues and develop a plan that will work effectively in both states.
Most people are aware of how critical it is to have up-to-date advance medical directives, durable power of attorney, designation of a health care advocate and a living will. However, what you may not know is that each state has its own set of laws and rules which may mean that your documents won’t work as you planned in another state. Even if the documents meet the technical requirements of the other state, a hospital or doctor may not choose to honor the documents which may mean your decisions regarding end-of-life or disability care may not be honored.
If you are a dual resident, it is important to talk with an experienced Marietta estate planning attorney so that they can provide specific direction regarding individual state requirements. So if your will or trust was created before you owned property in another state, be sure to call and make an appointment with your Marietta wills attorney to go over your will or trust to make sure that it will work just as you planned.