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5 S. Public Square

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Cartersville, Georgia 30120

770-334-8574

What will happen to your estate without a will in Georgia?

June 15, 2010 Leave a comment

The majority of Americans still don’t have a will. Cost, time and an uncomfortable subject are often cited as reasons to avoid making a will. Despite these hurdles many don’t understand the difficult position that a lack of will can create for your loved ones.

If you are married in Georgia and you die without a will, your property will pass to your heirs through a legal principal called intestate succession. If you have no children the property will pass to your spouse. This seems simple enough, but if you have a charity or a relative that you would like to leave a gift to, intestate succession will not accomplish your goal.

If you have children and die without a will, your property will be divided equally between your children and your surviving spouse, with your surviving spouse guaranteed to receive a minimum of one-third of your estate. Many people assume that their estate will simply pass to their spouse because they are married– that is not the law in Georgia. You need a will to direct your assets and make certain that your spouse is not put into a difficult financial position.  

If you have minor children, the significance of a will takes on an additional importance. If both you and your spouse pass, a will is the only legal device in which you can make your wishes known as to who should take care of your children. A judge will ultimately make that decision, but the will lets your preference be known. As a practice, judges give serious consideration to your wishes. Financially, the will can create a simple trust fund that will help provide support for your children on a timeline that you can create. These features cannot be accomplished without a will.

If you don’t have a spouse or children your property will pass to parents that survive you, if none then to your siblings and their children. A will can follow this scheme or alter it to include gifts to friends, charitable donations and even instructions for taking care of pets.  

A will can quickly and confidentially be crafted to express your wishes. Additionally a will is more affordable that you might think. Please feel free to contact me with questions or to get a will started.

Categories: Wills

Property division in a Georgia Divorce – What is equitable division?

June 15, 2010 Leave a comment
There are two major legal principals used to divide property in Georgia. The first is alimony, the second is equitable division.

Before continuing, anyone contemplating or served with divorce papers should contact a lawyer. As you are about to read, property division in Georgia can get complicated and the best way to protect your rights is to contact an attorney right away.

Equitable division is a common feature in most Georgia divorces. The guiding principal in equitable division is fairness – not equality. Sometimes an equitable division does come out to be roughly equal and other times it can send more money to one spouse over the other. The specific mechanics as to who gets how much involve a variety of factors and can vary from case to case. However there are some guidelines to consider.

The only property subject to equitable division is property that is considered marital property by the court. Thus the label “martial property” or “separate property” can be fairly significant. Marital property might generally be described as property acquired by either party during the course of the marriage. While separate property is property that was acquired before the marriage. Both of these concepts are subject to numerous limitations and it is always best to consult a lawyer with your specific situation.

Common examples of things a court may consider marital property:
Wages or salary earned during the marriage
Money held in a retirement account funded during the marriage
Money held in a joint or separate checking or savings account funded during the marriage
A home purchased during the marriage
A car purchased during the marriage
Pets purchased during the marriage
Credit Card debts accumulated during the marriage
Gifts between spouses during the marriage
Gifts to the marital couple during the marriage

The bottom line: if it was acquired during the course of the marriage, it might be considered martial property. It is a mistake to think that the name on the account or title matters – IT DOES NOT! Wages earned by one spouse and placed in a bank account that is held separately from the other spouse will likely be considered marital property. A home titled and mortgaged to only one spouse, if purchased during the course of the marriage, will likely be subject to equitable distribution.

Common examples of things a court may consider separate property:
An inheritance acquired during or before the marriage, awarded to one specific spouse
Personal property owned by the spouse before the marriage: jewelry, computers, cloths
Degrees or licenses earned during or before the marriage

A common situation is that one spouse will have purchased a home (or anything else really) before the marriage and made payments on the mortgage before the marriage. Then during the marriage that spouse will continue to pay on the mortgage. In a divorce the home is now going to be considered both marital and separate properties. The court will determine a percentage based on the amount of the wages paid into the home and that amount will be subject to equitable distribution. This same thing could happen to any item that was purchased before the marriage but funded or paid for during the marriage. By “tracing” wages, the court can often reach property that many individuals assume will be treated as separate property.

Another situation, not as common might involve a home that one spouse brought to the marriage completely paid for. If during the course of the marriage, the non-owning spouse does work on the property that enhances the value, that increase in value might then be treated as marital property.

Once property is divided, the court then must address who gets what. Look for future postings to learn more about factors considered in setting the amount of money between the spouses.

This posting is just a primer on a few of the numerous scenarios and factors when trying to divide property in a divorce. It can get complicated and you will best be served by an attorney – don’t rely on this discussion. This is simply a discussion of legal issues and is not legal advice to any individual and should not be applied to any specific factual scenario. If you have a specific question contact me and I will be happy to answer your questions.

Categories: Family Law