As Trust and Estate practitioners, we have heard many of the same myths and misconceptions about Estates, Wills and Trusts over the years. Below are the most frequent we encounter.

1. Reading of the will

While dramatic and often seen on TV or in movies, this is not the process in Georgia. Wills are most often hand delivered or mailed to all of a decedent’s “heirs at law”. Whether they are beneficiaries under the Will or not, heirs are entitled to a copy. Heirs are those individuals determined by Georgia law to be the closest degree of relation to a decedent. Typically, this is the spouse and children.

2. Revocable/Living Trusts provide creditor or tax benefits

This is likely the most common misconception and I have written about it before. Revocable or “Living” trusts offer zero tax (income or estate) or creditor benefits. In other words, you can not avoid tax or protect your assets by placing them in a revocable trust.

3. Surviving spouses are guaranteed a portion of a deceased spouse's estate

This is true in almost every state, except for Georgia. In Georgia, spouses may only petition the probate court for a “Year’s Support”, which is the amount of money they need to maintain their standard of living for one year, taking into account their current assets and income and a variety of other factors. In many cases, this is near nothing. Accordingly, Georgia is one of the only states in the country where you can effectively disinherit your spouse without their consent and without resorting to re-titling assets.

4. The government gets your property if you don't have a Will

The government will effectively write your Will if you do not have one. However, the government does not get your assets unless no heirs, of any degree, can be found. If four years have passed since an estate has been opened and no person has appeared to claim property as an heir, the personal representative must petition the probate court for a determination that the property has escheated to the state. The assets will actually be transferred to the county board of education.

5. You have to give a child at least $1 in a Will to disinherit them

Another common misconception is that in order to disinherit a child, you must give them some minor sum of money. Not only is this inaccurate, but it actually gives them the status of a “beneficiary” and thus potentially greater informational rights from the Estate. The only real exception is if a testator does not provide in the will for a living child solely because the testator mistakenly believed that the child was dead.

6.           Everyone pays estate tax

In 2024, the basic exclusion amount for determining the amount of the unified credit against estate tax is $13,610,000. Further, the concept of “portability” effectively allows spouses to double these amounts between them. Accordingly, unless you own (or gifted during life) assets greater than $13,610,000 (or $27,220,000 if married), you will not owe any estate tax. There is also no inheritance tax in Georgia.

7.           Spouses are liable for each other's debts 

Absent a spouse contractually agreeing by way of a guaranty or other mechanism, you are not liable for your spouse’s debts, medical or otherwise. 

8.           You have to file life insurance claims immediately 

While life insurance companies will encourage you to file immediately, there are often many reasons not to. One such reason is that Georgia law requires insurance companies to pay the policy beneficiaries a 6% return from the date of death to payment of proceeds. Despite their threats of considering the policy “abandoned” if you delay a claim, Georgia law also provides that life insurance proceeds may only be presumed abandoned after 5 years.

9.           Personal Representatives/Beneficiaries are liable for the debts of the Estate

Personal Representatives cannot be held liable for the debts of an Estate, absent a failure to follow the proper procedure regarding creditor’s claims. Beneficiaries likewise have no liability for Estate debts unless the estate shall have been distributed to them without notice of an existing debt. In such a case, a creditor may compel them to contribute pro rata to the payment of the debt, but only up to the amount they received.

10.         Probate is expensive and costly 

Probate in some states can carry with it onerous taxes, fees, and procedures. In Georgia, probate proceedings are relatively inexpensive and efficient. Often times, the expense of probate is less than the expense incurred in drafting and keeping up with an estate plan in order to avoid probate.