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Guardian? Conservator? Power of Attorney? Executor? What’s the Difference in Georgia?

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As an Atlanta estate planning and probate attorney, one of the most common questions we are asked deal with the differences between a guardian, conservator, power of attorney and executor in Georgia. It can be very confusing to understand who has rights to make decisions on behalf of another, the scope and limitations of those rights, when those rights vest, and when they extinguish. These questions generally arise when a family member is unable to make decisions for themselves, often due to illness or age.

Guardian: A guardian is the person who has the legal authority to care for another person or for the property that belongs to another person.

  • When a guardian’s powers become effective: A guardian has decision making powers while the person for whom they are making decisions is still alive.
  • When a guardian is necessary: A guardian may be required because someone is under the age of 18 and, therefore, too young to legally make decisions for themselves. Alternatively, a guardian may be necessary because someone is ill, with Alzheimer’s for example, and does not have the mental capacity to make decisions for themselves.
  • The scope of a guardian’s powers: A guardian can be appointed for a limited purpose or for many decision making purposes, including decisions regarding medical care. A guardian does not make financial decisions – that is the responsibility of the conservator.
  • How a guardian is appointed: The guardian for a minor can be named in a Last Will and Testament in the event the legal parents of the minor predecease their children. The court can be petitioned to name a guardian for an elderly parent or sibling.

Conservator: A conservator is like a guardian, but makes only the financial decisions of another.

  • When a conservator’s powers become effective: A conservator has decision making powers while the person for whom they are making decisions is still alive. This power automatically terminated when the person for whom they are making financial decisions dies.
  • When a conservator is necessary: A conservator may be required because someone is under the age of 18 and, therefore, too young to legally make decisions for themselves. Alternatively, a conservator may be necessary because someone is ill, with Alzheimer’s for example, and does not have the mental capacity to make financial decisions for themselves. For example, if an elderly parent has dementia, the conservator will be able to access the parent’s bank account to pay the mortgage on the house, pay all health care related expenses, etc.
  • The scope of a conservator’s powers: A conservator makes financial decisions, such as paying bills.
  • How a conservator is appointed: The conservator for a minor can be named in a Last Will and Testament in the event the legal parents of the minor predecease their children and the parents’ assets go into a trust for the benefit of the minor. The conservator can manage all of the assets for the benefit of the minor. Alternatively, the court can be petitioned to name a conservator for an elderly parent or sibling.

Power of Attorney: A power of attorney is a document whereby one person (the grantor) grants another person (the agent or attorney-in-fact) the authority to act on the grantor’s behalf.

  • When a power of attorney becomes effective: A power of attorney is only effective during the life of the grantor and automatically terminates upon the grantor’s death. Often an adult child has power of attorney over their parent. The power of attorney is used by the adult child to access the parent’s bank account to pay bills of the parent’s behalf. The minute the parent passes away, the rights given to the adult child under the power of attorney are extinguished and the adult child will no longer have the ability to access the parent’s bank account. The adult child would have to go through the probate court to obtain any further necessary legal powers.
  • The scope of a POA’s power: A power of attorney can be as narrow in scope or as broad as the grantor wishes. A power of attorney could grant an agent the right to conduct only 1 business transaction (known as a special power of attorney) or the right to make all financial decisions on behalf of the grantor (known as a general power of attorney) or to only make financial decisions in the event the grantor becomes incapacitated and unable to make his/her own decisions (known as a durable power of attorney)

Executor: An executor is the person named in a Will to execute the provisions in the Will.

  • When an executor’s powers become effective: An executor is named in a Will and only has the powers to execute the wishes of the testator after the testator dies. For example, while an elderly parent is alive, a power of attorney would give the adult child the power to access the parent’s bank account, but after the parent dies, the person named the executor in the parent’s Will has the power to access the parent’s bank account.
  • When an executor is necessary: After a loved one passes away and their assets need to be distributed and their debts need to be paid.
  • The scope of an executor’s powers: An executor has the power to execute all of the testator’s wishes as expressed in a Will and take those other steps necessary to distribute assets and pay the debts of the deceased.

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Why All Georgia Residents Should Have a Will

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Michelle Ksidakis recently wrote an article on Placer County Online entitled “Do You Need a Will?” explaining why everyone should have a will prepared by an attorney. Interestingly, she noted that 65% of Americans today do not have a will. Who knows how many of the 35% of people who have a will have a legally sufficient will.
In her article, Michelle Ksidakis addresses some common misconceptions held by those who do not have a will. As an Alpharetta Estate Planning attorney, I have heard the same reasoning from many people.

  • Myth 1: “My assets are so small that a will is not necessary.”

This reasoning has several flaws. First, most people do not have an accurate picture of their net worth and may have a higher net worth than they think. Second, a will is an opportunity to provide your family with direction on how to distribute items of sentimental value. Often, the division of these items causes the greatest family strife. Third, your will is your opportunity to select a guardian, trustee, and/or conservator for your minor children. Otherwise, the court will decide who will raise your children and who will hold the purse strings to their inheritance.

  • Myth 2: “When I die, my spouse will get all of my assets.”

This is only sometimes the case. If an individual dies with no will in Georgia, and that individual leaves behind a spouse and children, the estate will be divided up between the spouse and the children. In that case, your spouse would not receive all of your assets.
There are other assets that will automatically pass to a designated individually outside of your will. For example, real property owned jointly with right of survivorship will pass to the joint owner automatically. The same goes for jointly owned bank accounts. Assets with beneficiary designations, such as IRAs and life insurance policies, will pass to the designated beneficiaries if they survive you. If your beneficiary does not survive you and you have no will, the courts will determine to whom your assets pass.

  • Myth 3: “I can create a will on my own and save the legal costs.”

Each state has certain requirements that must be met in order for a will to be valid. These requirements are often absent from “do-it-yourself” wills. An invalid will or an improperly executed will gives those who may want the will invalidated an opportunity to contest the will. This probate litigation can quickly deplete the assets of your estate, leaving your loved ones with little to nothing once all matters are settled by the court. The cost of an attorney-prepared will is nominal compared with the cost of litigation.

  • Myth 4: “I don’t want my final wishes to be set in stone. I’ll create a will later in my life.”

A change or amendment to a will is a simple, fast, and inexpensive process. As life-changing events occur, simply request that your Atlanta attorney prepare a codicil to your will to reflect these changes.
To ensure that your will is legally sufficient, consult with a capable Atlanta Estate Planning Lawyer to draft and refine your will.

Do You Need An Attorney To Create Your Georgia Will?

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A question we are often asked is whether someone should hire an attorney to prepare a will or whether a template document from a company like legal-zoom will suffice. There are a number of reasons why, as a general rule, it is best to have an attorney prepare a will.
One of the most important is that the document must be properly executed. Proper execution differs by state. In order to have a valid Will in Georgia, the document must be signed by the person creating the Will and 2 witnesses. Dying with an improperly executed will is the same thing as dying with no will at all.
This week alone we had 3 different families contact us about probating a parent’s will where the will did not contain the proper signatures and/or witnesses to the signing of the will. Practically speaking, that means no Georgia court will recognize any of the documents as a valid Georgia will. This often creates excess work, legal fees, and strife among the remaining family members.
Here are a few examples of an improperly executed Georgia Last Will and Testament:

  • Will is not signed by the testator. The testator is the person creating the Will.
  • The Will is not signed by 2 witnesses.
  • There is a handwritten amendment to an existing will. Changes to a will (known as a “codicil”), must be executed with the same formalities as a regular Will.

Probate of Real Property Located Outside of Georgia

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Do you own a vacation home in Florida? Or Farm land in Illinois? How about rental property in South Carolina? If you live in Georgia and own real property in another state, you will likely have special estate planning needs.
After death, an estate must be probated in the state where the decedent (the person who died) resided. Probate is the process, through the court, where the estate is distributed. Probate often requires the expense of hiring an attorney and can take months (if not years) to complete. If, however, the decedent owns land or a house in a state other than Georgia, the estate may be subject to ancillary probate. “Ancillary probate” is an additional probate preceding held in the state where the real property is located, but where the deceased person did not live. That means, the family would have to incur the time and expense of probating the estate in Georgia and in any other state where real property is owned even though the decedent did not live in that state.
Each state’s probate process varies. Though Georgia laws will determine how property in Georgia is distributed, the laws of the state where the real property is located will determine how that property is distributed. One simple and commonly used estate planning solution to avoid ancillary probate can be to put the out-of-state property into a trust. A trust document (similar to a Will) would need to be created and then the title of the out-of-state property would need to be properly transferred to the trust.

Dying in Georgia Without a Will: Georgia Laws of Intestacy

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In 2009, approximately 67,402 people died in Georgia according to the U.S Department of Health and Human Services. Most of these people died without a will, trust, or other estate plan in place.
Dying without a will is called dying “intestate”. If a Georgia resident dies intestate, their assets will be distributed in accordance with Georgia statutory law, specifically, the Official Code of Georgia § 53-2-1. The same holds true if a Georgia resident dies with an ineffective will, an invalid will, a will that does not properly dispose of all property, or a will that specifies that property should pass according to Georgia statutory law.
Georgia law regarding how property is distributed when someone dies intestate is complicated and it is best to consult with an Atlanta probate attorney who can properly analyze your specific circumstances. However, here is an overview of the general rules regarding how property passes when someone dies intestate:

• If an Atlanta resident leaves behind a spouse and no children, the entire estate passes to the spouse.
• If an Atlanta resident leaves behind a spouse and two or less children, the spouse and each child receive an equal share of the estate.
• If an Atlanta resident leaves behind a spouse and three or more children, the spouse receives one-third of the estate and each child receives an equal portion of the remaining two-thirds of the estate.
• If an Atlanta resident is not survived by a spouse, child, or grandchild, the estate passes on to their parents who share equally.
• And so on…

Adopted children, non-marital children, and children conceived before the parent’s death are treated in the same manner as children born of a marriage under the Georgia laws of intestacy. A number of factors complicate this process such as monetary advancements made to a child or spouse or situations where a child dies before a parent. Distributing the estate of a loved one who died intestate can be very complicated and we recommend you consult with an Atlanta probate attorney.