A will is a document where you say who gets what and who is in charge of making that happen. Someone named in a will to receive your assets is called an heir or beneficiary, and the person put in charge of making that happen is called a personal representative or an executor. It’s important to note though that wills do not apply to assets where you have a surviving joint owner of that asset or to assets where you have a living beneficiary designated. For example, on retirement accounts and life insurance, if you have spouse named and then your children, then that asset will be payable directly to the living beneficiary who’s named separate from that a will says. If you have a will, and a will is really critical for your estate plan, you need to make sure that it’s in sync with everything owned jointly and also everything where you have a beneficiary named to make sure it all is working together according to your wishes. 

Also, for any property passing under will, it’s important to note that that will has to be filed with a probate court and reviewed and approved before anyone named in the will, the personal representative can act on your behalf, gather your assets, pay any creditors who might be owed money, and then ultimately distribute the assets to your heirs. A will is a document that does have to go through probate, which is actually a common myth that we run across. People think that a will is a magical document that covers every estate planning scenario, and it doesn’t. It’s critical and you need it, but you need to make sure that you understand it goes through probate before it is effective, and that is a will. 

So think of a trust as a will-substitute. A will says who gets what, under what circumstances, and who’s in charge of making that happen. A trust does the same thing. 

The critical difference between a will and a trust is that a will has to be filed with a probate court and reviewed and approved before anyone can act under it or receive any assets from your estate. So everything filed in the probate court, including the will, becomes a public record, and, as you might imagine, it takes time to go through a public court proceeding. 

A trust, on the other hand, is a completely private document. No one’s entitled to see it except those who are named in it, and the successor trustee named in your trust can act immediately, without having to go to court, file anything, or get permission first. So a trust is a totally private document that can be more immediate and efficient upon someone’s passing, whereas a will is a public document once it’s filed with the court, and the court has to review and approve it before anyone can act under it.

So if you pass away with no will in place, state law fills in the gaps. So state law dictates who gets what if you haven’t clarified in a will who your heirs and beneficiaries are. State law tends to follow kind of what you might expect people to choose. A surviving spouse is the primary heir, and then children after that. If there are no spouse or children living, then it goes up to your parents who would receive your estate. And then, ultimately your siblings, and nieces, and nephews, until someone is available to receive your estate. 

But it can get really tricky, if you have a blended family, or either you or the surviving spouse have children from a different relationship. Because the numbers get a little tricky, and don’t just go flat out 100%, or in equal shares in that case. So even though Georgia law does fill in the gaps to make sure that people who are close to you receive your estate, it might be different from what you would want. And it also doesn’t clarify who is in charge of the assets left to a minor, or an incapacitated beneficiary.

So, state law is really just following the family tree, but really doesn’t do a whole lot more than that to make sure that those who do receive your estate, receive it in a way that you would want, and maybe at specific ages along the way that you would want.  So, if you die without a will, state laws fills in the gaps. But even then it really important to make sure that your plan is laid out, in writing, so we’re not having to rely on state law for you.

Probate is simply a court system. Every state has their own probate court system a judge says who is in charge of an estate. If you pass away, the court decides who’s in charge of making sure that your assets go to the heirs who are legally entitled to them.

It’s also the court system to make sure that if someone, whether it’s a minor child or incapacitated adult, has someone else that a judge has selected to be in charge of that person’s assets and that person’s medical decision making.

So the probate court is, one way to think of it is that it’s a plan, so to speak, for those without a plan. If you haven’t done estate planning to avoid probate, you’re leaving it up to a probate judge to figure out who’s in charge of your finances if you’re incapacitated, who’s guardian of your children if something happens to you and you leave minor children, who’s in charge of getting your assets gathered and inventoried and paying your creditors and, ultimately, distributing your estate out to your heirs. That’s where a probate judge is having to fill in the gaps.

Probate is not a must when it comes to estate planning. You can try to avoid probate with your estate plan if you sit down to actually put these things in writing ahead of time, but to the extent that any estate planning you did online or do it yourself missed a few key components or to the extent you didn’t do an estate plan at all, then probate is kind of the fill in the gap for your plan.

The short answer honestly is yes. A will says who gets what, but that’s not the only question when it comes to estate planning. Estate planning covers what if you’re incapacitated or disabled, who’s in charge of your assets and your medical decisions or your minor children if you’re a parent of minors, who’s caring for them during that time, and then ultimately who would be raising them if something were to happen. So, you definitely need more than a will.

Every adult in Georgia and any state needs a power of attorney, who’s in charge of your assets, who’s in charge of your medical decision making. You need a living will, which is what happens if you’re on life support making an end of life decision ahead of time, as well as a HIPAA release who can your doctors talk to, so that your family members and loved ones can know how you’re doing. And you need all of that in addition to a will. Whether you need a will and a trust is a separate question, but definitely a will alone doesn’t cover all of your estate planning needs.

Also, if you’re a parent of minors, you’d want the guardianship completely covered. Short term guardianship for an emergency situation. Long term guardianship, who would raise your children. Emergency wallet cards to make sure the information about your estate plan is immediately available in an emergency. A letter to your children, a letter to their guardian, just so that they know things you would want them to know if you need to write something down, if your children are very young or if a guardian would want some advice from you about what to do. That is a way to supplement just a will to make sure that everyone knows ultimately your wishes, your values, and your stories to pass down.