The Gage Law Firm

Wills & Estate Planning

The Gage Law Firm was proud to be a special presenter at The American Cancer Society's 2014 Development Conference in Atlanta, addressing "The Fall of DOMA and its Impact on LGBT Estate Planning and Gifting Opportunities."  With the advent of the Obergefell decision by the United States Supreme Court, we hope for even more progress in the coming years as our nation continues to tear down the walls of discrimination and recognize our community as equal citizens under the law.

Planning Your Estate Strengthens Your Family!

The Gage Law Firm offers full estate planning services to our clients, including plans tailored specifically to the needs of LGBT families, so that you can be prepared for the unexpected.  While planning your estate may seem a morbid prospect, we at The Gage Law Firm see it as a means of strengthening your family's financial and emotional bonds, not only preserving your legacy and ensuring your loved ones have the assets they need upon your death, but also ensuring that you are protected during the unforeseen circumstances of your life.

 

Consider the following:

  • Do you know where your assets will go when you pass away, including your home, household goods, life insurance, stocks and bonds, and bank accounts?
  • Do you know who will take care of your medical decisions in the event that you cannot?
  • Do you know who will handle your financial concerns in the event that you are unable to do so?
  • Will your loved ones be able to get the information they need and make decisions for you if you are sick and hospitalized?
  • Do you know to whom your children will go if you are no longer able to care for them, in life or because of your death?
  • Do you know if the loved ones you leave behind will have the financial means to support themselves?

You aren't alone if you answered "no" to any, or all, of these questions.  The unfortunate reality is that many of us, and a staggering number in the LGBT community, are not only unprepared for unfortunate events in their lives, but are also unaware of the drastic impact not planning one's estate can have on a family in Georgia.

The Gage Law Firm offers a variety of estate planning services and packages to fit your needs and those of your family. Since every individual and family is unique, we provide a thorough discussion of the instruments you need to enjoy peace of mind that your future is secure, without unnecessary and costly add-ons.  Just as important, we provide in-depth analysis of your current estate plan and suggest options and tools you might need to grow your assets and to prepare for the unexpected.  The Gage Law Firm can consult with you and draft a variety of estate planning documents, including:

  • Wills
  • Durable powers of attorney
  • Healthcare directives
  • Living wills
  • Nomination of testamentary and standby guardian for children
  • Trusts
  • Testamentary trusts and pour-over wills
  • Planning packages for gay and lesbian couples and families

Fees for these services vary based upon your needs, so call or submit a web request for a consultation today to discuss the package that fits you and your family!

Estate Planning Packages

The Gage Law Firm offers the following Estate Planning Packages, in addition to individual document drafting:

  • Individual Estate Plan--Includes a will, healthcare directive, and durable power of attorney
  • Estate Plan for Married Couples--Includes a will, healthcare directive/living will, and financial powers of attorney for each spouse
  • Estate Plan for Gay and Lesbian Couples--Includes wills for each partner/spouse, healthcare directives, and financial powers of attorney
  • Family Estate Plans--Includes wills, healthcare directives, durable powers of attorney, and testamentary and standby nomination of guardian for minor children
  • Trust Packages--For purposes of growing and controlling the distribution of your assets, whether to minors, the disabled, or irresponsible spenders.  Also can be used to support yourself in the event you become disabled.

All of our services come with thorough and knowledgeable consultation tailored to your needs. Everyone's circumstances are different and require thoughtful consideration.  Our goal is to simplify the process as much as possible and have you feeling confident that your estate is secure and your loved ones protected.

Why Do I Need a Will?

When you pass away without having drafted a will, you are deemed to have died "intestate."  The consequence is that the laws of Georgia dictate the distribution of your estate upon your death.  These laws are essentially default positions to ensure that your property goes somewhere, and those destinations are defined by legislators under the gold dome, not by you.

In most cases, dying intestate means that your property will go to your immediate family and spread out to other relatives if you have no immediate family.  In some cases, if you don't have the legally sanctioned individuals surviving you, your property goes to the State--a very scary thought.

Of any of the above-mentioned services we can provide, a will is one of the most important.  In almost every case, Georgia will respect the wishes of the testator's will, and probate courts are guided primarily by the intent of the individual who has passed AND has left directives as to where his or her assets should go.  Without any guidance, the courts are left with no choice but to make those decisions themselves, and they look to the law to help them.

This is of particular importance to gay and lesbian couples.  Even with the landmark Obergefell decision, in which the United States Supreme Court granted LGBT marriages equal footing under the law, many of us in the LGBT community have not yet been, or have chosen not to be, married.  In the eyes of Georgia, if you have not been married, your relationship is truly no more than a simple acquaintance, and if you die intestate, your partner or spouse will not receive one penny of your estate by default.  If you have family members who are hostile to your relationship, this would very likely mean a lot of heartache for your surviving partner or spouse.  These circumstances demand a proper estate plan to protect both you and your loved ones. Even if you have been married, mapping out an estate plan will give you peace of mind and ensure that your assets go where you intend for them to go, and that you are properly cared for in the event that you become incapacitated.

If you have children, under O.C.G.A. §29-2-4, you can direct whom you wish to nominate as a guardian for them in the event you pass away.  The courts will typically appoint this person upon your death without hearing or notice, presuming there are no other living parents to the child and the nominated individual is willing to act as guardian.  This is not the case if you die intestate.  Without specific guidance as articulated in a will, the courts will then get involved in making the decision as to whom should receive the children, with the best interests of the child being the overriding consideration.  As you might guess, this can become a very messy process.

Don't let Georgia decide where your estate or your children go.  DRAFT A WILL.  We can do it for you and give you peace of mind!

Why Not Just Write My Own Will?

It's tempting.  With the explosion of do-it-yourself websites, you might think you can avoid the worst of dying intestate by drafting your own will using a one-size-fits-all form and save some money.  The problem with this approach is that an individual's needs and state laws vary tremendously.  A national website may not take into account laws of wills and estates that are specific to Georgia, invalidating important parts of your will.  You might also be inviting painful and lengthy litigation after your death if your will is not compliant with state laws, and others who might otherwise be entitled to a portion of your estate may challenge the will you drafted yourself.

By having a qualified and competent attorney draft your estate plan, you can be sure that the language of these documents is compliant with Georgia law.  More importantly, an attorney can point out features of your property, investments, and other assets that might need to be taken into consideration when preparing your estate plan, so that your loved ones have as painless a process as possible after you have passed.  Yes, you will pay more now to have an attorney guide you, but it may save your estate-and ultimately your loved ones- much more by having properly drafted documents and a well-planned disposition of your estate.

At The Gage Law Firm, we're constantly staying on top of changes in the law so that we can advise you confidently on every aspect of your estate plan.  We can also ensure that you have a comprehensive estate and that you have a well-oiled estate team working on your behalf.

Incapacitation: Ensuring Your Needs are Covered

Have you considered what might happen if you were ill and unable to communicate or perform any of your daily tasks?  What would happen with your bills?  Your mortgage?  Do you know who would make critical medical decisions for you in the event you were unable to make those decisions yourself?

Many people may not have answers to these questions.  Part of estate planning is preparing for a catastrophic life event that results in your incapacitation.  The following documents allow you to direct those loved ones whom you trust to oversee your financial needs, medical decisions, medical records, and other potential concerns:

  • Healthcare Directive (Pursuant to the Georgia Advance Directive for Healthcare)--Allows you to appoint an agent with written instructions as to your medical wishes in the event that you are unable to make those decisions yourself.  This will include a living will provision, which makes known your wishes regarding life-prolonging medical treatments.  For same-sex couples, this is critical, as your partner will most likely not be permitted to make these decisions on your behalf absent a directive appointing him or her as your agent.
  • Financial Power of Attorney--Allows you to give your partner or other loved one the ability to manage your financial matters, property, business and other concerns in the event that you are unable to manage these matters due to illness.  This helps ensure that your finances don't come apart while you are incapacitated.

The Gage Law Firm can draft all of these documents for you, and each is a component of any of our Estate Planning Packages.

Trusts

A trust is (very basically) an instrument that defines rules for property you have placed under the management of a trustee.  Such property can be a variety of things, from real estate, cash, and stocks, to vehicles or other personal property.  Any property you place in it becomes the property of the trust, and can be invested, managed and ultimately distributed to beneficiaries pursuant to your directives in the trust document.  Trusts can be revocable, in the sense that the creator of the trust can alter the terms or property of the trust at any time during his or her lifetime, or irrevocable, where the creator cedes possession/ownership of the property to the trust immediately and is generally not able to alter the terms of the trust or terminate it after the point that it is created.  Both revocable and irrevocable trusts have a variety of uses, from protection in the event of incapacitation, to managed distribution of assets to children, to charitable contributions.

In many states, inter vivos (living) trusts are used as a means to avoid probate upon one's death, as the property contained within the trust is distributed to the beneficiaries named therein by the named trustee upon the death of the settlor (or creator of the trust) and is not subject to distribution through the probate courts like gifts in your will would be.  In Georgia, however, the probate process is quite streamlined, inexpensive and efficient by comparison, and this particular aim of creating a trust is not necessary.

On the other hand, a revocable trust can be a very useful tool for leaving assets to a minor upon your death, since you are able to dictate very specifically how, and when, you wish for these assets to be distributed to your child.  This can be incremental, or upon a child's age, or upon the passing of an event--it's all up to you.  In the meantime, property held in the trust could be invested if so directed, increasing the value of the assets for your named beneficiaries, such as your children.  These trusts can also be used to control the distribution of assets to a loved one who might otherwise spend these assets unwisely.  This is known as a spendthrift trust.

Trusts can also be created through your will (a testamentary trust) or you can will your assets to an already existing trust (a pour-over trust), accomplishing many of the aims mentioned above and allowing for private administration of the assets by your named trustee, rather than under court supervision.

While certain trusts can be used to avoid federal estate taxes, only a very small percentage of estates will be subject to these taxes under current and, likely, future estate tax exemption amounts.  There are a variety of considerations, as well, when ensuring that a trust is not considered a part of your taxable estate by the Internal Revenue Service. 

A trust is oftentimes a complicated instrument and requires considerably more time and energy to draft and plan.  Trusts are considered additions to our Estate Planning Packages, and we can discuss whether a trust fits with your needs and your family's.

Considerations for Gay and Lesbian Couples and Their Families

The United States Supreme Court changed the landscape of same-sex marriage in it's Windsor and Obergefell decisions.  Where once our marriages were considered either sub-par to heterosexual marriages, or in many cases non-existent, we now have been placed in many ways on the same plane as our straight friends.  However, many of us have yet to be married, or choose not to marry, our long-term partners.  If you are in a same-sex relationship, regardless of whether or not your have married, it is critical that you plan for your passing. 

Thankfully, Georgia respects the intent of the testator when he or she has drafted a will in most instances, regardless of your sexual orientation.  So, if you indicate in your will that you wish your assets to go to your spouse or partner, they will, absent a meritorious legal challenge.  You can pick whomever you want to leave property, and in almost every case you can exclude individuals from receiving your assets, as well.  And while the recent Supreme Court decisions have changed the rules of intestacy for those of us who have married, it's important that you direct where you want your assets to go, especially in cases of contingency.  A proper estate plan will ensure your loved ones are cared for when you pass.

Complications often arise concerning children and guardianship after you pass.  The Gage Law Firm can thoroughly discuss the options, and potential pitfalls, regarding your children's fate after your death. This is of particular importance in cases where one or both spouses have children from a prior marriage, and in cases where one partner has adopted a child but the other has not.  While a testamentary guardian can be nominated in a will, Georgia law overrides some of these nominations under specific circumstances.  You should know yours, so that you have a clear understanding of how securely you can protect your child's future upon your passing and if there is anything you might want to do beforehand to make your plan stronger.

Our Estate Planning Packages for gay and lesbian families include wills, as well as healthcare directives and durable powers of attorney for each partner to ensure that your affairs can be tended by your loved one in the event you are unable to do so.

The Gage Law Firm is committed to the LGBT community, and we take enormous pride in helping gay and lesbian families prepare for the unexpected.  Our firm is a member of the Stonewall Bar Association, an organization dedicated to the empowerment of LGBT men and women across Georgia.

 

Get a Free Consultation