On a daily basis we welcome people to the metropolitan Atlanta area from all over the world. Although global economy and the internet assist in making geographic borders of states and nations less apparent, until uniform property laws are adopted, a relocation can still wreak havoc on even the most effective long range-planning. As part of the acclimation process, new residents must determine the impact the laws of Georgia have on their property and finances, and must examine the inevitable question: as a resident of Georgia, do I need a Will to dispose of my estate? To answer this question, we must first know how Georgia law treats the estates of decedents who have not executed a Will.

An estate that is administered without a Will is called an "intestate estate" and is distributed according to state law. In Georgia, intestate estates are distributed to your closest level of surviving family, beginning with your spouse and your children, then parents, then siblings, etc. For intestate estates involving both a surviving spouse and children, the assets are divided between the spouse and children equally, with the spouse receiving not less than a one-third share. The distribution scheme can have a devastating effect on your surviving spouse's ability to maintain your family's standard of living, particularly where minor children are involved. Thus, if you want your property distributed in a way other than according to the state's order of preference, you need to have a Will, regardless of the size of your estate.

Those who have accomplished some measure of estate planning prior to their move to Georgia must determine the effect their relocation has on the estate plan from their prior residence. The obvious question is: Can I rely on the Will I previously executed in another state or must I execute a new Will in Georgia? Examine the following questions for guidelines regarding the need for a new Georgia Will or updating an existing one.

Each state has different execution requirements for Wills. So, just because a Will is validly executed in another state does not always make it valid for Georgia purposes. Fortunately, most Wills executed in other states will be valid in Georgia. To be a valid Will in Georgia, the Will must be signed by the testator (the person executing the Will), and witnessed in the presence of the testator by at least two disinterested persons. A person receiving a distribution under the Will cannot also be a witness. Failure of any of these requirements will likely cause the probate court to invalidate the Will and require administration as an intestate estate (see above).

Under Georgia law, a marriage, adoption of a child, or birth of a child that occurs subsequent to the execution of a Will, where no provisions are made in the Will contemplating such events, will cause a revocation of the Will. In the case of the subsequent adoption or birth of a child, however, a Will is not revoked where it contains provisions for a class of the testator's children, such as "to all of my children." Further, other changes in your immediate family structure such as divorce, the reaching of adulthood by your children or the birth of grandchildren should trigger a review of existing estate plan documents to verify their sufficiency in light of the change in circumstances.

While there is no per se prohibition against having an out-of-state individual acting as an executor in Georgia, the logistics of administration can be much more difficult for an out-of-state resident. It can lead to substantial additional costs because of the increased level of in-state assistance from professionals that would be required to complete administration of the Georgia estate.

In addition to providing for the testamentary transfer of an individual's assets, a second critical function of a Will is to provide for the appointment of a guardian for any of your minor children, in the event there is no surviving parent. Although the state provides certain preferences for family members, it is undoubtably preferable to establish in writing who should be responsible for the care and supervision of your children rather than leaving it up to a judge's discretion.

A large inheritance, success in the stock market or asset accumulation over time can push an individual's estate to a level at which it would become subject to federal estate tax. Failure to utilize common estate planning techniques in the Will such as the marital deduction for transfers to the spouse, or a credit shelter trust to take advantage of the unified credit (currently $650,000), could result in needless estate tax being paid on your assets. If your estate has reached or is approaching a taxable level, it is critical to re-examine your existing estate plan documents, if any, to ensure estate taxes are minimized or eliminated.

The occurrence of any significant change in a person's life, such as a move to another state, should motivate a person to evaluate the sufficiency of any existing estate planning documents or to take the necessary steps to formulate an estate plan satisfying one's current objectives and requirements. Gomel & Davis, LLP can answer any questions a person might have concerning Wills or estate plans in general.

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