Baldwin Attorney at Law



What can I do with a Georgia will?

A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:
Leave your property to people or organizations.
Name a personal guardian to care for your minor children.
Name a trusted person to manage property you leave to minor children, and name an executor, the person who makes sure that the terms of your will are carried out.

What happens if I die with out a will?

In Georgia, if you die without a will, your property will be distributed according to state "intestacy" laws. Georgia's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, and your spouse's relatives. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.

Do I need to have my will notarized?

No, in Georgia, you do not need to notarize your will to make it legal.However, Georgia allows you to make your will "self-proving" and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.
To make your will self-proving you and your witnesses will go to the notary and sign an affidavit that proves who you are and that each of you knew you were signing the will.

Top 10 Reasons to Have a Will:

1. You decide how your estate will be distributed.
2. You decide who take care of your minor children.
3. To avoid a lengthy probate process.
4. Minimize Estate taxes.
5. You decide who will wind up the affairs of your estate.
6. You can disinherit individuals who would otherwise stand to inherit.
7. Make gifts and donations.
8. Avoid greater legal challenges.
9. Because you can change your mind if your life circumstances change.
10. Because tomorrow is not promised.

The Powers of Your "Attorney In Fact"

You can give another person legal authority to act on your behalf with a power of attorney while you are living but not healthy enough or willing to manage your own affairs. When you grant someone this authority, this person becomes your attorney in fact. The legal authority to act on your behalf may be put in place permanently, or only to cover particular times when you specify the power should be in force, such as only in the event that you are incapacitated.

Based on agency law, power of attorney is granted through a sworn document that gives another person (your agent) the legal authority to sign documents, transfer property, or handle other matters of business for you. Your agent’s powers are limited to the specific powers you’ve entrusted to them.

In the context of estate planning, we use a financial power of attorney, medical power of attorney, and durable power of attorney, in order to authorize your named agents to take actions within the capacity of powers granted.

Your family will appreciate that you’ve executed a power of attorney when it helps them avoid fighting over who should be the one family member (or trusted friend), to help you manage your affairs while you are unable. You will have thoughtfully evaluated your choice of candidates ahead of time, and have already given them legal authority to help you.

Will a judge award grandparents custody or visitation rights in Georgia?

Although judges may award grandparents these rights, family law courts consider the rights of natural parents first. When either or both the mother and father are competent and willing to care for the child, the judge will grant custody preferentially to that natural parent.

The Georgia Transfers to Minors Act

Georgia solved this dilemma when they adopted the Uniform Transfers to Minors Act (UTMA). Georgia calls these adopted code provisions the Georgia Transfers to Minors Act (GTMA). In a nutshell, the GTMA allows a donor to appoint a conservator for the gift until the minor turns 21 years old. At that time the gift fully vests in the minor, who is free to use the funds as they desire. Thus, the GTMA is a hybrid between an outright gift and a formal trust. The following is a step by step guide to showing you how easy it is to set up a custodial account under the GTMA.

How to Set Up a Custodial Account Under the GTMA

1. Jurisdiction

Georgia allows significant jurisdictional leeway when using the GTMA. The transferor does NOT have to live in Georgia to take advantage of the GTMA. In fact, neither the custodian nor the minor need to live in Georgia so long as the custodial property (the property being transferred) is located in Georgia. Additionally, after the requirements are satisfied and the custodial account is created, the property, the transferor, the minor, and the custodian can all be located outside of Georgia if they decide to move.

2. Contingent Interests

The GTMA allows you to make a gift contingent upon the occurrence of a future act. For example, you can condition the gift on the minor attending college, graduating high school, etc. The gift does not vest (i.e. you can take it back) until the minor meets the condition.

3. Nomination of Custodian

The custodian cares for the gift until the minor turns 21 years old. The transferor can name almost anyone as a custodian for the gift, but it is usually the minor’s parent. The transferor may also name subsequent custodians if their first choice becomes unable or unwilling to act as custodian. If you are making this gift in your will, you must nominate the same person as conservator for both the GTMA gift and the general conservator nomination in your will.

4. Creation of Custodial Account

Most GTMA transfers will involve a gift of cash or securities; however you can transfer other property under the GTMA as well. The gifts are commonly made to a financial institution, such as a bank, credit union, savings institution, or trust company. The account may be in the name of the transferor, the custodian, or a trust company. All transfers MUST explicitly state they are made for the benefit of the minor under the GTMA, such as “as custodian for (name of minor) under ‘The Georgia Transfers to Minors Act.” Once the transfer is made into a custodial account, the gift is irrevocable and cannot be taken back. Most banks and credit unions are familiar with these custodial accounts, and welcome the opportunity to discuss them with you.

5. Multiple Beneficiaries

If the transferor wants to make gifts to multiple minor beneficiaries, they must create separate custodial accounts for each minor. Similarly, only one person may be a custodian of the property at any given time. However, the GTMA allows a corporation to act as a custodian. Therefore, transferors that are worried about custodial mismanagement still have the opportunity to have several professional sets of eyes on the custodial account.

6. Conservator Duties and Forbidden Actions

After the transfer, the GTMA allows the custodian to invest the custodial assets. Interestingly, the custodian will NOT be bound by other laws concerning fiduciary investments. This allows the custodian to make riskier investments than may be permissible under a traditional trust arrangement, which may in turn allow for a higher return on investment. The custodian is however forbidden from transferring the custodial assets into the custodian’s own accounts for any reason. Custodians must keep records of all activity made with custodial property, and must file reports with the parent or guardian of the minor after the minor has reached 14 years of age.

7. Closing the Custodial Account

The custodial account terminates and the funds are dispersed to the minor when the minor turns 21 years of age. At that point the minor is free to invest or spend the funds as they deem fit. This is a good opportunity to talk to the beneficiary about investing and financial planning.

What to do when there is no Will in Georgia?

PERMANENT ADMINISTRATION: This procedure requires notice to all heirs. A surviving spouse or sole heir is entitled to serve as Administrator, unless disqualified; otherwise, the person selected by a majority of the heirs is entitled to serve, unless disqualified. Administrators must post bond and file inventories and returns, unless ALL heirs consent to a waiver of those requirements. If ALL heirs consent, the Administrator may be given additional powers and authority. Guardians of minor or incapacitated adult heirs may acknowledge service, consent to selection and consent to waive requirements, provided the guardian is not the petitioner.

TEMPORARY ADMINISTRATION: Notice to the heirs is not required, but a majority of the heirs may select the Temporary Administrator. Powers are limited to collecting and preserving the assets of the decedent, and the Court may appoint a Temporary Administrator upon any showing of necessity or appropriateness. No expenditures or disbursements may be made without a special court order. Temporary Administrators must post bond and file inventories and returns. Guardians of minor or incapacitated adult heirs may consent to selection, provided the guardian is not the petitioner.

NO ADMINISTRATION NECESSARY: If all debts of the decedent have been paid (or if all creditors consent or fail to object after notice), if there is no other need for formal administra­tion, and if the heirs have all agreed on how the estate will be divided, this proceeding may be filed. All heirs must sign an agreement disposing of the entire estate; guardians of minor or incapacitated adult heirs may execute the agreement. Creditors who have not consented in writing must be given legal notice of the filing.

Implications for Estate Planning:

1. Including people who are not related by blood in your Will must be handled legally and carefully to avoid any contest after you are gone. State laws governing family inheritance are clear; the same cannot be said for non-relatives.
2. Leaving money to a family member with an addiction or some other life problem- maybe an abusive spouse or unscrupulous children- might require the use of a trust and a trustee to avoid the potential disasters that can result.
3. Give some serious consideration if you are contemplating not including someone in your Will. Giving a significant bequest to a specific person might not sit well with you, but consider giving a small gift to avoid a contest due to complete exclusion.

Why don't many school buses have seat belts?

Seat belts are not required on school buses in Georgia.

This is an area of controversy nationally. Although safety belts provide excellent protection in passenger vehicles, the effectiveness of safety belts on school buses is a subject of debate. In 2008, NHTSA released a change to FMVSS 222, which requires new school buses weighing 10,000 pounds or less to have lap-shoulder belts. The rule also requires increasing the height of seat backs from 20 inches to 24 inches and allows states or local jurisdictions to decide whether to install seat belts on school buses weighting over 10,000 pounds. California, Florida, New Jersey, New York, Louisiana, and Texas have passed seat belt laws for school buses but funding has been scarce. Legislators in several other states introduced bills that would require school buses to have seat belts installed, but progress on that is slow.

Can I reduce my child support payment when the oldest child graduates without filing a case?

No. Only a court can modify your child support obligation. While a Court would likely reduce your obligation when a child graduates, you must ask the Court to lower the obligation.

What factors does the court consider when determining whether to increase or decrease a parent's child support obligation?

In an action to modify a child support order, either upward or downward, a parent must prove that there has been a substantial change in either parent's income and financial status or in the child's financial needs since the original child support order was entered. A parent must wait for two years after making a previous request to modify child support to ask for a subsequent modification, unless:

the request for modification is based on the parent's involuntary loss of income
the noncustodial parent has failed to exercise court-ordered visitation, or
the noncustodial parent has exercised more visitation than the court ordered.
Once this threshold requirement is met, your obligation to pay child support is reconsidered under the child support guidelines, based on each parent's income and time spent with the child.

Will the court increase my ex's child support obligation because TheY got a big raise?

It depends on the facts, including the size of the raise. Generally, in an action to modify child support, a parent must establish that there has been a substantial change in the income and financial status of either parent, or in the financial needs of the child, since the date of the original support order. If this threshold requirement is met, your ex's obligation to pay child support will be reconsidered under the appropriate child support guidelines.

Will the court reduce my child support obligation if I lose my job?

If you lose your job, Georgia law gives you the right to immediately file a petition to modify your child support obligation. Although parents generally have to wait at least two years after filing for a previous modification of child support to file a new request, a parent who loses a job or suffers another hardship that results in a loss of at least 25% of that parent's income may file for modification of child support right away, whether or not two years have passed.

The out-of-work parent gets another advantage, too: That parent's child support obligation will stop accruing at the original rate once the request for modification is served on the other parent. The portion of the paying parent's child support obligation attributable to the lost income will not accrue (meaning that debt will not continue to pile up) as soon as the other parent is served.

Effect of Termination of Parental Rights

An order terminating parental rights forever terminates the rights and obligations of the parent at issue. The parent no longer has a right even to notice of further proceedings regarding the child.

Once a Georgia court terminates a parent's rights, the court must determine where to place the child. Courts will look to other blood relatives, the Department of Human Resources, other licensed child placing agencies, or foster homes. As with most other Georgia family law standards, the court's overriding concern will be the best interest of the child.

Marital Property and Separate Property

Marital property generally includes assets and debts a couple acquires during marriage. Certain types of property remain the separate property of only one spouse, including property each spouse owned before marriage or acquired during marriage by gift (not including gifts from the other spouse) or by inheritance, as well as property falling into one of the following categories:

items purchased with or exchanged for separate property
earnings on separate property, and
any increase in value of separate property.
A spouse can convert separate property to marital property by changing title from individual to joint ownership during the marriage, in which case a court would presume that the spouse intended to make a gift of the property to the marriage. Marital and separate property can also be mixed together—sometimes called "commingling." For example, a premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits to it. The spouse who originally owned the account could still claim some of the funds as separate property, but only by tracing the funds through financial records.

Where both spouses have contributed to an asset that increases in value during the marriage, Georgia follows the "source of funds" rule, which requires dividing the asset—or the value of the asset—in proportion to the contributions of marital and separate property. For example, if a divorcing couple were to sell a marital home for $400,000, and the home had been purchased separately by one spouse prior to the marriage for $200,000, the court would look at how much of that $200,000 price the purchasing spouse had paid prior to the marriage and how much both spouses paid during the marriage. If the purchasing spouse paid half of the price before marriage, then half of the sale proceeds—or $200,000—would be that spouse’s separate property, and the remaining $200,000 would be marital property.

What are the reasons for terminating Parental Rights?

Under Georgia law (Section 15-11-94), a court may only terminate parental rights if one or more of the following circumstances has occurred:

the parent consented (in writing) to the termination or voluntarily surrendered the child for adoption
the parent willfully failed to comply with a child support order for at least 12 months
the parent abandoned the child
the parent has been convicted of murdering the child's other parent, and/or
the court finds parental "misconduct or inability."

How does Family Violence Affect Custody?

The court needs to know if there has been any violence in your home. A judge must make the safety of the child and the abused parent the primary focus of the custody decision and must consider violence against the parent when deciding custody. Watching violence against a parent can harm a child as much as abuse of the child.

The Do's and Don'ts for Trusts:

1. Think of choosing a trust as a dry run for your estate planning. Consider all possible life scenarios and how a trust will or will not help those situations.

2. When setting up a trust or trusts, do them all at once so that you can save a few dollars and make sure none of them conflict with the others.

3. Put all trust agreements in writing.

4. Make sure the proper legal language is used in every agreement.

5. Clearly define the trustee responsibilities and obligations. A "passive" trust, which does not define these things, might not be recognized by a court as a trust.

6. Clearly define beneficiaries

7. Clearly define the property in the trust. "Everything in the dining room" is an example of what not to do.

8. Make sure the property you put into a trust will meet the needs you identify. In the year 2016, $100,000 might not be enough to pay for a college education.

9. Carefully choose a trustee who will execute your wishes, take care of all legal obligations, and is willing to take on all those duties.

10. Keep an eye on the content and value of each trust over time -fluctuating market conditions and changes in your life might leave a trust underfunded, or maybe obsolete.

What happens if there is no will?

If you pass without a will, the estate is split according to how the government decided was the best method years ago. Generally that means it goes to your spouse first, then to your children in equal proportions.
Standard rules will be applied to every situation.

You can be sure those rules won’t take into account what’s best for your children. The person who ends up with custody of them could be the one person you’d never want your kids to be with.

What about taxes? Those rules won’t do anything to minimize taxes on your estate.

Let’s not forget unique situations, like co-owning property. If three people own a house and one dies without a will, the other two have equal say. One can force a sale. Or they can fight over it. These situations can drag on for years.

It can even affect your funeral. If you don’t have a will that spells out your plans, your loved ones will have to make the arrangements. I’ve seen situations where families couldn’t even buy a tombstone because they couldn’t agree on the one they wanted.

You need a will, and an executor who will make these decisions based on your choices.

At Baldwin Attorney at Law, LLC, I recommend that when you are in good health and making clear decisions, come in and discuss your situation with me to see what type of estate plan is appropriate for you.

You deserve to be comfortable knowing that when something happens to you, your wishes will be followed.

Common Estate Planning Mistakes…

When forming a revocable trust, it is important to properly move or transfer specific assets into your trust. Until this is done, your trust is simply a nice empty shell. If your assets are owned outside of your trust, your estate will likely go through probate following your death. Evans & Davis often sees plans that were created without properly funding the trust. Likewise, this problem also occurs when clients purchase new assets after the trust was created, but fail to properly title the assets. Most importantly, all of these issues can be corrected by regularly reviewing your plan and assets with an estate planning attorney.