We can hardly believe it, but 2021 is drawing to a close. This is a great time to review your estate plan and consider what planning needs you might need to take care of in 2022 to protect yourself and your loved ones. Take some time in the coming weeks to ask yourself these questions…
Do I have a Will, Power of Attorney, and Advance Directive for Healthcare?
This is the most important (and most obvious) question to ask yourself about your estate plan—do you HAVE an estate plan? The three essential planning documents in Georgia are the Will, Power of Attorney, and Advance Directive for Healthcare. If you are missing any of these documents, your estate plan is NOT complete, and things could be very difficult for your family should you die or become incapacitated. For example, without a Will your estate would be distributed according to Georgia's laws of intestate succession, which can be a lengthy, complicated, and expensive process for your loved ones. If you were to become incapacitated without a Power of Attorney or Advance Directive for Healthcare, your family would have to undergo the time and expense of petitioning the court for the power to make decisions and manage your property, medical, and financial affairs on your behalf.
If you do have these documents, you're on the right track. But don't stop reading—you may still have some work to do!
How old are my planning documents?
Perhaps you completed your planning years ago, when the kids were little and you wanted to make sure they would be taken care of. But if years have passed, and those kids are now adults (maybe with kids of their own), you plan likely needs some adjustments. For instance, maybe your distribution plan involved a testamentary trust to care for your minor children, but they can now handle an inheritance on their own. There is also the possibility that you want to rethink who you once placed in the roles of executor, personal representative, and healthcare agent. While your documents will never ‘expire' or become invalid due to age, it is wise to review your estate plan annually, and consult an experienced attorney if you think you may want to make changes.
Was my Power of Attorney created before July of 2017?
While all of your planning documents should be reviewed if they were created long ago, you should pay particular attention to the date on your Power of Attorney. In July of 2017, Georgia enacted the Uniform Power of Attorney Act, which added several protections to both the principal of a POA (that's you!), as well as the person designated as your agent. For example, the new law holds the agent to a higher level of accountability for abusing his or her power, and also gives an agent the ability to compel a financial institution to accept the POA. You can read more about this new law and the protections it offers here.
These new protections only apply to POAs signed after July 1st, 2017, meaning that if your POA was created before this date, you need to work with an attorney to update your document and take advantage of this law.
Is my trust funded?
If you have made an estate plan and chose to use a Revocable Living Trust, make sure that you have funded the trust. This year we've talked to several clients who had a trust in place, but the attorney who helped them set it up did not educate them on how to use it. They had never funded the trust, meaning that they had not moved any assets into the trust. Essentially, they had paid a good deal of money to create a trust that was doing nothing to protect them or their assets! To fund your trust, you will need to change the name on the deed or title of your assets so that they are ‘owned' by the trust. If you aren't sure if your assets are in your trust, or need help doing it, give us a call and we can help.
Do I have a plan for my business if something happens to me?
If you're a business owner, you have more to think about than just your estate plan. What about your business? Business continuity planning is one of the most overlooked aspects of estate planning, and many small business owners do not have any planning in place for their company should they die, become incapacitated, or simply be away from the office for an extended period. Is anyone, besides yourself, authorized to sign checks and contracts, run payroll, or make operational decisions for the company? If not, your business and employees could find themselves in bind if something were to happen to you. Business could grind to a halt, leaving everyone who depends on your company for their livelihoods (including your family) in a tough situation. Furthermore, what happens to the business after you die? Do you want it to continue to operate, be sold, or dissolve? Do you want your children to receive stake in the business as an inheritance? You need plans in place to ensure that both daily operations and business succession run smoothly in your absence.
Do my parents have their planning completed?
While it may not be the most fun conversation to have, we strongly recommend speaking with your parents about their estate planning. According to a 2019 report by Merrill Lynch, only 18% of Americans age 55+ have all three essential planning documents in place. While many people understand that planning is important, few follow through and actually get it done. Unfortunately, we sometimes get calls from people whose parents have become incapacitated or passed away, and they have not completed their planning. Now, their adult children and loved ones are scrambling to manage their affairs. In many of these situations, it is too late for us to help. If the parent is unable to care for themselves, their children must seek conservatorship or guardianship, both lengthy and expensive legal processes. If the parent has passed away without a Will, their estate will be distributed by Georgia's laws of intestate succession, meaning their wishes may not be honored. Don't let this happen to your parents—have a conversation about their estate planning.
So, how did you do? If your answers to any of the above questions indicated that your estate plan may need some work, contact Peach State Wills and Trust. We can help you build a plan from scratch, review and update an old plan, or, if you just aren't sure what you need, we can sit down with you and help you determine the best next step. To schedule a consultation, give us a call at (678) 344-5342, or submit a contact form here .
Remember, estate planning doesn't have to be hard, and we can help.SM