Should You Choose a Will or Trust in Georgia? You might be asking this question if you’re just getting started in your estate planning or have recently gained sizable assets. Or, maybe you know someone who’s dealing with contentious estate litigation and has come to realize the importance of estate planning.
[If you or someone you know is dealing with a will dispute or trust dispute in Georgia, contact Gaslowitz Frankel as soon as possible. We have an experienced estate litigation team that can help.]
Whatever the reason may be, here are some facts about wills and trusts that can help you determine which legal option might work best for you.
What is a Will?
A will is a legal document that outlines how you would like your assets to be distributed after your death. These assets can include anything from money, real estate, personal belongings, stocks, and more.
A will identifies a person whom the testator wants to serve as executor. The executor of the will is responsible for carrying out the distribution of the assets and making sure that everything is done in accordance with the document and state law. It’s important that you choose an executor who will carefully follow the will.
Your will only becomes effective after you die.
The vast majority of Americans use a will over a trust, and it’s the most common type of estate planning mechanism in Georgia.
What is a Living Trust?
A living trust (not the same thing as a “land trust”) is another way that you can transfer your assets after your death, but it uses a different process.
When you establish a living trust, you’ll be able to place assets in the trust during your lifetime: money, real estate, financial holdings, etc.
During your lifetime, you’ll serve as the trustee. When you die, the trust becomes irrevocable—which means that no further changes can be made to it—and a new trustee will be appointed to ensure the assets are transferred to the beneficiaries you designated in your living trust.
If you have any assets that were not placed into your trust before your death, those assets will be subject to probate if you live in the state of Georgia.
The Probate Process in Georgia
Like many other states, Georgia has a probate process, in which a will is admitted to probate and the decedent’s estate is administered.
In Georgia, probate usually takes between 12 – 18 months to complete. Once the deceased person’s debts are paid and tax returns filed, their assets are distributed to beneficiaries and the estate is closed.
In Georgia, the court process can be avoided entirely if:
- All heirs unanimously agree on how the assets will be distributed, and
- If the deceased person has no outstanding debt.
Probate can also be avoided if the deceased person established a living trust rather than a will—but as previously mentioned, any assets not placed in the trust will be subject to probate.
Is It Better to Have a Will vs Trust in Georgia?
If you live in Georgia, what’s a better estate planning option—a will or living trust?
Both have different benefits and drawbacks that you should consider.
Benefits of a Will
Here are a few key benefits of using a will:
- Economic: Wills are easier and more economical to set up, which is why a larger number of Americans use them.
- Naming Guardians: You might prefer to use a will if you have young children. Wills enable you to assign a trusted guardian for your kids, in case you die when your kids are still minors.
- Less-Complex Assets: If your estate has minimal or less-complicated assets, you’re probably better off using a will (that’s well-constructed with guidance from estate attorneys). Trusts are more costly to maintain and implement and may not be worth the costs for a moderate estate.
Benefits of a Living Trust
Here are a few key benefits of using a living trust:
- No Probate: In most cases, living trusts allow you to avoid the lengthy probate process.
- Privacy and Security: Living trusts will protect your privacy more than a will because they’re not part of the public record. They can also shield your estate from creditors and other parties that believe they’re entitled to some of your assets.
- Flexibility: Trusts give you more flexibility on how you can distribute your assets (for example, you can choose to have certain assets distributed to your kids once they reach a certain age).
- Avoiding Conservatorship: Living trusts can protect your estate in a situation where you’re no longer able to manage your assets. Sometimes, elderly people who do not have the capacity to make end-of-life decisions may be placed in a conservatorship or guardianship that removes their ability to manage their assets. A living trust prevents this from happening.
Can You Have a Will and Trust in Georgia?
In Georgia, you can have both a will and a trust—and sometimes, it’s best that you use both. A will is a critical legal document for just about anyone; even if you have the funds to establish a trust, a will can help you distribute any assets that aren’t automatically transferred by your trust.
Whether you’re setting up a will, trust, or both, it’s important to consult with estate planning professionals so you can be prepared for any challenges or uncertainties that may arise when it’s time for your assets to be distributed to beneficiaries.
