When planning for the future, Georgia residents may face the choice between creating a will or establishing a living trust. Both are tools which are central to estate planning, but they serve different purposes, offer distinct advantages. Each comes with its own set of requirements and implications. Understanding how wills and living trusts work under Georgia law can help you make the best decision for your family, assets, and peace of mind.
Wills in Georgia: Simplicity and Legal Foundations
A will, or “Last Will and Testament,” is a legal document that outlines how your property should be distributed after your death. In Georgia, a valid will must be in writing, signed by the testator (the person making the will) or someone else at their direction, and witnessed by two competent individuals who are not beneficiaries. The testator must be at least 14 years old and have the mental capacity to make rational decisions regarding their estate.
Key Features of Wills in Georgia:
- Appointing the Executor: A will names an executor to carry out your wishes. If you don’t name one, the probate court will appoint someone.
- Guardianship of Minor Children: Only a will can designate guardians for minor children, making it essential for parents.
- Asset Distribution: You specify who inherits your assets, and you can exclude individuals if you wish, provided you clearly state this in the document.
- Witness Requirements: Two witnesses must sign, and a will can be made “self-proved” with a notarized affidavit, simplifying probate.
Limitations:
- Probate Required: All wills in Georgia must go through probate, a court-supervised process that authenticates the will, settles debts, and distributes assets. This process can take 12 to 18 months and typically costs 3% to 8% of the estate’s value, including attorney, court, and executor fees.
- Public Record: Once filed with the probate court, a will becomes a public document, meaning anyone can access details about your estate.
- Limited Asset Protection: Wills do not protect assets from creditors or provide tax advantages.
Living Trusts in Georgia: Flexibility, Privacy, and Probate Avoidance
A living trust is a legal entity you create to hold and manage your assets during your lifetime and distribute them after your death. You can name yourself as trustee, retaining control, and appoint a successor trustee to manage the trust if you become incapacitated or after your death. Living trusts can be revocable (changeable during your lifetime) or irrevocable (permanent, with greater asset protection and tax benefits).
Key Features of Living Trusts:
- Avoids Probate: Assets held in a living trust bypass probate, allowing for faster, private distribution to beneficiaries. This can save significant time and expense, especially for larger or more complex estates.
- Privacy: Trusts do not become public record, keeping your financial affairs confidential.
- Incapacity/Disability Planning: If you become incapacitated or disabled, your successor trustee can manage trust assets without court intervention.
- Flexibility: Revocable trusts can be amended as your life circumstances change, such as after a marriage, birth, or acquisition of new assets.
- Asset Management: Trusts can be structured to provide for minor children, individuals with special needs, or staggered distributions.
Limitations:
- Complexity and Cost: Setting up a living trust is more complex and expensive than drafting a will. Legal fees for establishing a trust in Georgia may range from several hundred to a few thousand dollars, depending on your estate’s complexity.
- No Guardianship Provision: Trusts cannot name guardians for minor children; a will is still needed for this purpose.
- Maintenance: You must actively transfer assets into the trust (retitling property, updating accounts), and review the trust regularly to ensure it reflects your wishes.
Comparing Wills and Living Trusts in Georgia
| Feature | Will | Living Trust |
|---|---|---|
| Takes Effect | After death | Immediately upon creation, continues after death |
| Probate | Required | Avoided for trust assets |
| Privacy | Public record | Remains private |
| Cost | Lower upfront, higher probate costs | Higher upfront, lower long-term costs |
| Guardianship | Can appoint for minor children | Cannot appoint guardians |
| Incapacity Planning | No provisions | Successor trustee manages assets if incapacitated |
| Asset Protection | Limited | Greater (especially with irrevocable trusts) |
| Flexibility | Simple to change | Revocable trusts can be amended |
Which Should You Choose?
Your choice depends on your goals, family circumstances, and estate complexity:
- Choose a Will if:
- Your estate is small and uncomplicated.
- You need to appoint guardians for minor children.
- You want a simple, cost-effective plan.
- Choose a Living Trust if:
- You want to avoid probate and keep your affairs out of the public record.
- You have real estate in multiple states or a large, complex estate.
- You want to plan for incapacity or provide structured distributions to beneficiaries.
Many Georgians benefit from using both a will and a living trust—a “pour-over will” can ensure any assets not transferred to the trust during your lifetime are moved into it upon your death.
Conclusion
Both wills and living trusts are powerful estate planning tools under Georgia law, each with unique benefits and limitations. Wills offer simplicity and are essential for guardianship, while living trusts provide privacy, probate avoidance, and flexibility. Consulting with a Georgia estate planning attorney can help you craft a strategy that protects your assets and honors your wishes, providing peace of mind for you and your loved ones.
Disclaimer
The information provided on this blog is for general informational purposes only and is not intended to serve as legal advice. While I am a paralegal, I am not a licensed attorney, and the content shared here should not be construed as such.
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