May 31, 2024

10 Common Estate Myths & Misconceptions

Bryan A. Schivera

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.

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