Frequently Asked Questions
We try to keep an ongoing list of concise responses to common questions. However, these responses are no substitute for legal advice. Please contact us directly if you have an issue you need assistance with.
What is a Decedent?
“Decedent” is the technical term for someone who has passed away. This term is used in all probate pleadings and proceedings in Georgia.
What is the Difference Between Testate and Intestate?
When someone passes away with a valid Last Will and Testament, they have a testate estate. When someone passes away without a valid Will, they have an intestate estate.
What is an Executor?
An Executor is the legal representative of a testate estate appointed by a probate court to carry out a Last Will and Testament. An Executor is typically nominated in a Will, and this nominee is entitled to serve in that position unless the probate court finds them “unfit”. A nominated Executor can always decline to serve, in which case a successor nominee can be appointed. A female Executor is sometimes referred to as an Executrix.
What is an Administrator?
An Administrator is the legal representative of an intestate estate appointed by a probate court. In Georgia, essentially anyone can petition to serve as Administrator of an estate, however, certain people have priority to serve in this position. The highest priority to serve as Administrator is a surviving spouse, followed by other heirs, and then creditors.
What is a Personal Representative?
“Personal Representative” is the general term used to refer to an estate’s legal representative, which includes Executors and Administrators. However, the term Personal Representative does not include other appointed representatives for an estate who serve in a more limited capacity, such as Temporary Administrators.
What is a Testator?
A Testator is the technical term for someone who drafts a Last Will and Testament. In Georgia, anyone who is at least 14-years-old can draft a legally binding Will, as long as they have the mental capacity to do so. A female Testator is sometimes referred to as a Testatrix.
What is an Heir?
An heir is any individual who stands to inherit from the estate of someone who passes away without a Last Will and Testament. The identity of heirs, and the share of an estate they will receive, is decided under our laws of intestate succession, which is explained under our Estate Planning FAQs.
What is a Descendant?
The term “descendant” is sometimes used interchangeably with the term “heir”, however, it has a distinct meaning. Descendants are only lineal ancestors, which include children, grandchildren, great-grandchildren as well as children in any other subsequent generation. Descendants are also sometimes called issue.
Estate Planning FAQs
How Much Does an Estate Plan Cost?
Price is always a consideration when hiring an attorney to draft your estate plan. Our office charges flat fees for all estate planning services, but that fee varies depending upon a number of factors, including the complexity of the planning involved. We can normally quote a fee range for estate planning services after a free phone consultation. As a point of reference, a complete estate plan for a married couple, which includes Last Will and Testaments, Durable Powers of Attorney, and Advance Directives for Healthcare for each spouse, typically costs under $1000.
What is Intestate Succession?
If you pass away without a valid Will, then your property will be distributed according to the law of intestacy (also called distribution and descent). The Georgia Code contains a schedule of how your property will be divided under these circumstances, which depends upon the relation and number of heirs that survive you. For example, if you are married when you pass away and do not have children, then your spouse is your sole heir and receives your entire estate. If you pass away leaving a spouse and children, then your property is divided equally between the spouse and children, although your spouse must receive at least a 1/3 share of your estate. If you pass away without a spouse or children, then your property goes “up” your family tree to your parents. If your parents have predeceased you then your siblings are next in line to inherit, and then nieces and nephews if any siblings have passed away before you. The line of descent next goes to grandparents, then to aunts and uncles, and then to cousins. If none of these relatives survive you, then an estate ultimately gets divided among the relatives who have the closest degree of blood relationship to you.
What are the Requirements for a Will in Georgia?
A Last Will & Testament is a formal declaration of an individual’s instructions for the disposition of their property after death. In order to constitute a Will, a document must be executed with the formality required by Georgia law. Thankfully, the requirements for a valid Will in Georgia are not too onerous. The document must be in writing, signed by the person making the Will (or “testator”) and attested to by two witnesses who are competent and over the age of 14. A separate document, called a self-proving Will affidavit, normally accompanies a Will and is also signed by the testator and witnesses further attesting that the required formalities for the execution of the Will have been followed. Unlike the Will itself, the self-proving Will affidavit must be notarized. This affidavit is not required; however, a Will that is self-proved may be admitted to probate without the witnesses’ testimony. The affidavit also creates a presumption, subject to rebuttal, that the requirements of execution and attestation were met. In practice, a self-proving Will affidavit should always accompany a Will when possible.
What is a Trust?
A trust is a fiduciary arrangement in which property is held by one party who is bound to use that property for the benefit of another. This arrangement typically involves at least three roles. First, a Grantor (sometimes referred to as a Settlor), establishes a trust agreement and typically transfers property that they own into that trust. The trust agreement appoints a Trustee to oversee the administration of the trust. The Trustee normally has legal title to the property in the trust, which means they have the power to manage and disburse the property according to the terms of the trust agreement. Third, the trust agreement names at least one Beneficiary who is intended in some way to receive the use of the trust property. The Beneficiary has equitable title to the property in the trust. Although a Beneficiary has no legal powers over the property (while it remains in trust) that property is ultimately intended to benefit them and they can sue to enforce the trust agreement if the Trustee does not follow its terms. The Trustee also owes a fiduciary obligation to the Beneficiary, which is a duty to serve the beneficiary’s interest above their own.
A trust allows you to exercise continuous control over property. For example, you can transfer property to a beneficiary in trust but then defer a beneficiary’s enjoyment of the property until they reach a certain age or restrict how that property can be used. A trust also expands the field of potential beneficiaries. Rather than give property to one person outright, you can choose to distribute property to multiple beneficiaries, across several generations. Trusts also have inherent asset protection qualities for your beneficiaries. Because beneficiaries do not have legal title to the property held in trust they cannot assign or transfer it to creditors if a judgment is entered against them.
Do I Need a Will or Do I Need a Trust?
Trusts and Last Wills and Testaments are not mutually exclusive planning techniques. In fact, a well-developed estate plan typically includes both. The real decision you need to make is whether the primary vehicle for your estate plan will be a Will or a Trust. If you base your estate plan primarily upon a Last Will and Testament (and rely upon it to transfer your property) your estate plan must pass through the probate process. Click here to learn about some potential problems with the probate process. For anyone who seeks to avoid the probate process, the primary alternative to a Will-based plan involves using a Revocable Living Trust as the foundation for your estate plan.
What is the Difference Between Per Stirpes and Per Capita Distribution?
When you leave property to your children as part of your estate plan, you also need to decide how that property will be distributed in the unfortunate event your children pass away before you. If these deceased children had children of their own, you would likely want your grandchildren to receive the property that would have gone to their parents. When distributing property to subsequent generations of descendants, there are two main distribution schemes to choose from: Per Stirpes and Per Capita.
Per Stirpes is the default distribution method in Georgia and literally means “by the roots”. Under per stirpes distribution, a Decedent’s estate is divided into equal shares at the first generation of descendants with surviving members. When a member of that generation passes away before a Decedent, the next generation of descendants divides their parent’s share equally. For example, if A passes away leaving three children (B, C, and D), then each child would receive a one-third share of the estate. If B has already passed away before A, leaving two children of his own (B1 and B2), then each of those grandchildren would divide B’s one-third share and receive one-sixth of the estate.
Per Capita distribution literally means “by the head”. Under per capita distribution, an estate is divided into equal shares at the first generation of descendants with living members, just like per stirpes. However, if members of that first generation have passed away, per capita distribution then divides the remaining estate into equal shares for all members of the next generation, regardless of their parent’s share. The difference between per stirpes and per capita distribution only becomes apparent when multiple members of the first generation have passed away leaving a different number of descendants in the next generation. Under the previous example, if D has also passed before A and leaves three children (D1, D2, and D3), then under per stirpes distribution those grandchildren would divide their parent’s one-third share of the estate and each receive one-ninth. Under per capita distribution, the two-third share of the estate that would have gone to B and D is divided equally between all members of the next generation, so each grandchild would receive 2/15 of the estate
When creating your estate plan, you get to choose the distribution method that meets your goals. Many people prefer per stirpes distribution because subsequent generations do not receive a greater share of the estate than their parents would have received. Other people prefer per capita distribution, however, because it ensure that members of the same generation get an equal share.
Do You Have to Probate a Last Will and Testament?
When someone passes away, Georgia law requires that anyone who has that deceased person’s Last Will and Testament submit it to the probate court with “reasonable promptness”. However, Georgia law does not require anyone to probate a Last Will and Testament. As described in our How to Probate a Will page, the primary purpose of probate is to transfer property out of the estate of a deceased individual to their intended beneficiary. Sometimes, it simply does not make sense to probate a Will. For example, if someone passes away and does not own any property whatsoever, or if all of their property passes through non-probate transfers, then probate of their Will would be a waste of time and money.
How Long Does it Take to Probate a Will?
No question gets asked more often about the probate process than “how long is this going to take?”. Unfortunately, there is no good answer to that question because the length of time required for probate depends upon a lot of variables, such as:
- Whether we can locate all of the heirs;
- Whether all of the heirs acknowledge service of the Petition to Probate;
- Whether all the heirs and beneficiaries cooperate in the probate process;
- Whether the Will is “self-proved”;
- Whether the Will grants the Executor expanded powers to administer the estate; and,
- The list goes on and on..
However, even in cases where everything goes right and there are no unexpected delays, the probate of a Will takes more time than most people would like. The probate process is highly regulated by Georgia law, and there are certain required waiting periods we have to observe. For example, after being sworn in, an Executor must publish a notice to debtors and creditors in the local newspaper for four weeks. An Executor also cannot ask a probate court for discharge from office until at least three months after the last publication date of that notice to debtors and creditors. Because of the various unavoidable delays in the probate process, in the best-case scenario, the uncontested probate of a Will normally takes between 9 to 12 months.
Who Can Object (or "Caveat") to the Probate of a Last Will and Testament?
Once a Petition to Probate a Last Will and Testament has been filed, certain people have the opportunity to file an objection (or “caveat”) to probate. Many caveats are filed by heirs who have been disinherited by a Will or who receive a lesser share of an estate than other heirs. However, caveats are not just filed by heirs. Unfortunately, the bar to file a caveat is relatively low. Anyone who has an “interest” in an estate has standing to file a caveat, and the courts construe this class broadly. Essentially, anyone who claims that they would be harmed by the probate of a Will (or would benefit if the Will were not probated) can file a caveat. This class includes heirs who are disinherited by a Will, beneficiaries of prior Wills who are not included in the current Will being offered for probate, as well as any creditors of these individuals.
What Order do Debts of an Estate Get Paid in?
When paying debts of an estate, a personal representative must follow a statutory priority. From highest priority to lowest, the debts must be paid in this order:
- Year’s Support to a surviving spouse or minor children;
- Funeral expenses in an amount that corresponds with the circumstances of the decedent in life;
- Expenses of administration, such as court filing fees, attorney fees, and travel expenses;
- Reasonable expenses of a Decedent’s last illness, such as a hospital stay;
- Unpaid taxes due to the United States or any state;
- Judgments, secured interests, and other liens; and,
- All other claims
How is a Personal Representative Compensated?
Personal Representatives are entitled to receive compensation for carrying out their duties in administering an estate. In a testate estate, this compensation can be specified by the Testator in a Last Will and Testament. In an intestate estate, compensation can be agreed upon by all of the heirs. When compensation is not defined in this manner, a Personal Representative receives commission-based compensation as set out by Georgia statute. The commissions vary depending upon the type of property brought into the estate, whether this property accrues an interest, and what debts the Personal Representative pays; however, the total commission typically amounts to around 6% of the total estate value.
What is a Probate Bond?
When an Administrator or Temporary Administrator is appointed to represent an intestate estate, they often have to post a bond. A probate bond (also called a surety or fidicuary bond) protects the heirs and creditors of an estate if the Administrator or Temporary Administrator does not faithfully perform their duties. The probate court typically sets the amount of a bond equal to the value of the personal property in an estate, and an Administrator or Temporary Administrator cannot be sworn in until a bond is posted. If all of the heirs of an intestate estate agree, an Administrator’s requirement to post bond can be waived. The Executors of testate estates generally are not required to post bonds, and that requirement is commonly waived by a Testator in a Last Will and Testatament.
Elder Law FAQs
Does Medicare pay for Nursing Home Care?
Medicare covers a wide variety of in-home care services, which includes some intermittent skilled nursing care. However, Medicare does not provide any meaningful coverage for skilled nursing care administered in a nursing home. Under limited circumstances, when a patient is transferred to a nursing home directly from a hospital, Medicare will cover up to 20 days of nursing home care without any out-of-pocket expense to the patient. After those initial 20 days have been used, Medicare will provide up to an additional 80 days of coverage for nursing home care, but a patient will be charged a daily copayment. Once the full 100 days of coverage has expired, Medicare does not provide any additional coverage for nursing home care whatsoever.
Can You Own a Home and Qualify for Nursing Home Medicaid?
When you apply for Medicaid coverage of nursing home care, the value of your homeplace is normally excluded from eligibility considerations as long as a couple of requirements are met. First, the equity value of that home cannot exceed a threshold limit that gets updated annually, which is $585,000 for 2019. Second, the applicant must state in writing that they intend to return to their home, or the home must be occupied by the applicant’s spouse or dependent relative, or the sale of the home would cause hardship for a co-owner of the property.
Will I Lose My Home if I Need Nursing Home Medicaid?
For many people, a home represents their most valuable asset. Sadly, there is a possibility you could lose your home if you require nursing home Medicaid coverage. While the value of a homeplace will not ordinarily prevent your from obtaining nursing home Medicaid, it can become subject to the Estate Recovery process when the home is sold or after you pass away. Individuals who expect they may rely upon Medicaid for long-term care should seriously consider engaging in proactive Medicaid planning to preserve their home from estate recovery, which is best done through the use of an irrevocable trust. Click here to learn more about Medicaid planning.
What is a Patient Liability?
When someone is approved for nursing home Medicaid, they still typically have to pay a monthly amount out-of-pocket to that nursing home for their care. This monthly amount is called their patient liability. The patient liability is calculated by taking an individual’s gross income, subtracting any state or federal withholding taxes, subtracting an amount the state allows them to keep for personal needs (which is currently $50), subtracting their permissible incurred medical expenses, and subtracting any amount of income they are allowed to divert to a spouse living outside of a nursing home. The State of Georgia then reimburses the nursing home for the difference between the patient liability and the nursing home Medicaid bed rate.
What is a Qualified Income Trust?
A Qualified Income Trust, also called a Miller Trust, is an irrevocable trust created specifically for individuals whose income exceeds the monthly cap for nursing home Medicaid coverage. A Medicaid applicant can divert their excess income into a Miller Trust in order to get under the income cap. After this excess income gets transferred to the Miller Trust each month, it must then be paid out of the trust towards eligible expenses, such as for a personal needs allowance or patient liability towards a nursing home. Paying for ineligible expenses out of the trust, such as mortgage payments or other household bills, will invalidate the trust. When a nursing home Medicaid recipient passes away or no longer needs Medicaid coverage, any amount remaining in the Miller Trust must be paid to the Georgia Department of Community Health.
Special Needs Planning FAQs
What is In-Kind Support and Maintenance?
When a recipient of Supplemental Security Income (SSI) receives assistance in the form of food or shelter, the value of that food or shelter can be treated as unearned income that will reduce their SSI benefits. The Social Security Administration refers to this type of unearned income as In-Kind Support and Maintenance( or ISM). The actual monetary value attributed to in-kind support and maintenance depends upon a number of factors (such as where the SSI recipient is living when they receive the assistance). One common scenario involves an SSI recipient living in someone else’s home (such as a parent or relative) and not contributing towards rent or groceries. In these cases, the SSI recipient’s benefit will be reduced by one third, but will not be reduced beyond that if any additional ISM is received.
What is Deeming?
Even when a disabled individual has no income or resources of their own, the Social Security Administration (SSA) can consider another person’s income or resource as if it belonged to the disabled individual for eligiblity purposes. In other words, the income and resources of another person can be “deemed to” a disabled individual and considered available for their support (regardless of whether it actually is available). These deeming rules are intended to account for the fact that certain people have a familial or legal obligation to support disabled individuals. While a large number of relationships qualify for deeming, the two most common relationships are deeming between spouses and deeming between parents and children. As a consequence of these rules many disabled individuals will not receive Supplemental Security Income benefits or SSI if they reside with a spouse or reside with a parent before the age of 18.
What is a Pooled Trust?
A pooled trust, sometimes called a D(4)(c) trust, is a type of special needs trust established and administered by a non-profit organization. After establishment, disabled individuals can participate as beneficiaries of a pooled trust by executing a “joinder agreement”. Each beneficiary of the pooled trust typically maintains a “sub-account” of the master trust that tracks their individual contributions; however, as the name implies, all of the beneficiaries’ contributions are pooled together for investment and management purposes. Pooled trusts can operate as self-settled trusts, where a beneficiary contributes their own assets to the trust, or third-party trusts, where someone else contributes their assets to the trust. Just like other first-party trusts, self-settled pooled trusts must abide by “sole benefit” and “payback” requirements. Read more about Special Needs Trusts
What is a Medicaid Waiver program?
Each state’s Medicaid program is jointly regulated by that state and the federal government. Some of the requirements imposed by the federal government on Medicaid programs are that it must operate state-wide and provide comparable care to every eligible recipient. However, the states may apply for waivers of these requirements in order to provide enhanced care to targeted groups of Medicaid recipients, such as the elderly and disabled. This enhanced care can include meal services, emergency response, and caregiver relief. These enhanced services are provided to elderly and disabled Medicaid recipients who would otherwise need to receive such care in a nursing home or other facility. Unlike the Medicaid program as a whole, waiver programs have a limited number of slots for participants and can operate as pilot projects in certain geographic areas only. Click here to learn more about Georgia’s Medicaid Waiver programs.