Without exaggeration, this is where your estate planning truly begins. Ask yourself what you want to get from your estate plan because it allows your legal counsel to craft a plan around your answer. There are two fundamental steps to having a complete plan. As much as we would like to say, we came up with them (we didn’t). They aren’t marketing gimmicks to get people to work with us. To show you that we aren’t being humble, we will point out that these two steps are written in the law.
Who Can I Give My Assets To?
The first one is a statute called the law of free wishes. It says you can leave your assets to whomever you want. Most people would push back on that and say that doesn’t apply to married people. If you are married—and this is a presumption (even among lawyers) in estate planning—you must leave specific assets to your spouse. In some states, some laws state that if you don’t leave anything to your spouse, they will receive a portion of it regardless. That is true, but it is not the case in Georgia. Some provisions in the law protect the surviving spouse, but there is no mandate about what you have to leave a certain percentage of your estate to your spouse.
To be effective, the law of free wishes requires that you put your wishes into a legal document. The law of free wishes is where we start with our clients. We talk to clients from mixed families, where both spouses have children from previous marriages and have children together. Parents understand the unique needs of all their children. Some of these children, who are adults, will have special needs or marital issues. When we meet with clients like this, the most straightforward starting point is to ask the client what their wishes are. Don’t begin with the concern that the law dictates what you must do and that you and your attorney must find a legal workaround. In Georgia, tell your attorney what you want to happen to your assets when you pass away, and let your plan follow your intentions.
How Does This Apply To Special Needs Individuals?
After understanding what you want, we can build a plan that works with any issues that surface because of them. Think of your wishes as a compass heading guiding the estate planning process. We are not in a role where we tell you that you must do things a certain way. If you have a loved one in your family with special needs (which could be your spouse with a dementia-related illness like Alzheimer’s or a child with autism), there is unique planning that you need to do. However, if your wish is to leave them something, do it.
There are always legal considerations and implications, but that is what your attorney will assist you with. You don’t have to exclude a loved one with a disability. In all probability, you may have already run into a professional advisor who claims that you cannot leave someone with a disability with an inheritance. These people may also be told that they can leave things to the person’s sibling so they can support the person with special needs. (If you need further clarification on how true this is, please ask attorney Tharpe about his experiences with loved ones with special needs. He knows for a fact that you can leave your assets to whomever you want.)
It is not a matter of who you leave things to but how you leave them.
Document Your Wishes
Let’s compile your wishes and put them on a document. If you don’t follow through with this second step, the state of Georgia will determine where your assets go. In just about every case, state laws won’t mirror your personal choices. Take the next step by scheduling a consultation with us so we can learn more about what you want. It’s our job to help facilitate and support you.
Kevin Tharpe
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