By Justin O’Dell
As introduced last month, Dick and Jane are a young, married couple with three children. Dick and Jane have never been able to find the time to sit down and prepare their Wills. They are now asking friends and family about getting it done. Some of the common myths they are hearing are as follows:
1) “Don’t hire a lawyer, just do it online. Lawyers charge too much.”
2) “You need to avoid probate and set up living trusts.”
3) “You cannot name out-of-state people as Executor or Guardian.”
Drafting a Will is one of the most important legal exercises for a young couple. Along with a Will, couples should consider completing the Georgia Advance Directives Form. This Form will dictate decision making authority and end of life decisions in the event of a tragic situation whereby D ick or Jane cannot make a decision for his or her self.
The first myth is a common situation perpetuated online. While it is true that legal forms are available for limited amounts of money on line, the insight and knowledge to make sure that the forms are drafted and executed correctly is not readily available. I have had numerous instances where people have spent more money trying to deal with the issues created by poorly drafted or executed Wills online than they would have spent hiring a lawyer to do it correctly in the first place. Think of it this way – you can also go online and learn to rewire your electrical panel, replumb your bathroom or even do knee surgery, but is that the best idea??? O’Dell & O’Neal charges $600 as a flat fee for this work which includes the consultation, preparation of the Will and execution of the Will and Advance Directives Form. By contrast, the hourly rates of most lawyers would easily surpass that total in fixing a mistake.
The second myth is perpetuated by individuals seeking to overcharge clients for estate services. The reality is that no one should avoid probate and even the “probate avoiding” documents still require admitting a Will to probate. What the process is referring to really involves keeping assets out of probate, not avoiding probate court. There are states and situations where keeping assets out of probate makes sense. Some states still charge fees based on the size of the estate. Some individuals have extremely high net worth or unique family situations where living trusts provide value. For Dick and Jane, simple wills are more than adequate. Furthermore, many of the “probate avoiding” techniques establish living trusts to hold assets. In order to accomplish their purpose, these living trusts must hold all of the parties’ assets and must have a separate tax ID number and file a separate tax return each year. For individuals like Dick and Jane this only complicates their already hectic lives.
The final myth is commonly circulated based on old memories of law long ago. It is true that at one time, restrictions existed regarding the appointment of out of state Executors, Trustees and Guardians. Most of these restrictions are gone. Executors and Trustees may freely serve without any additional requirements or costs and frequently do so. The use of e-mail and Fed-ex makes dealing with local attorneys and the probate court as easy (if not easier) as dealing with someone on the other side of Atlanta. As for guardianship, the paramount concern of the Court is the desire of the parents and the best interests and welfare of the children.
Next time, we will continue the Probate law theme and discuss some issues with Dick and Jane’s parents and aging. Dick’s sister has called and informed that because Mom is in poor health, she is going to have Mom add her to all of her bank accounts. Good idea????