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A letter on the law

 Parents – you need to execute a Last Will and Testament. I recently represented an unfortunate client whose husband unexpectedly died of a heart attack while he was getting dressed for work. He was survived by my client (his wife) and their two young children, and he did not have a will. I write that she was unfortunate, not only because her husband tragically passed away, but also because his untimely death left his widow with a real legal nightmare.


My client and her departed husband didn't know that under Georgia law, if you are married with minor children and you die without a will your spouse is not your sole legal beneficiary. Instead, your spouse becomes a joint heir with your children. Generally speaking, this is not a good thing.

Effectively, this means that the ownership in all of the property of the deceased is split amongst the widow and the children. To make matters worse, if those children are minors, the law requires that a conservatorship be set up through the Probate Court (above and beyond what is typically required to handle the deceased person's estate). In most cases, the conservatorship requires that the guardian of the children (who is appointed by the Probate Court) must purchase a surety bond and file annual returns with the Court. Whenever the surviving spouse wants to take action with regard to the property that he or she inherited from their partner – such as selling or refinancing the marital residence – he or she will have to get permission from the Judge of the Probate Court to do so. Filing the motions and attending the hearings to obtain such permission is time-consuming, expensive, and an emotionally draining exercise.


On the other hand, if a spouse with minor children dies with a valid will, the estate will be administered in accordance with the terms of the will, and the aforementioned steps are avoided. By simply executing a valid Last Will and Testament, parents can control the disposition of their estate and avoid all of the hassles that my unfortunate client has been forced to endure.

It does not matter where you go to get a Will. Wills are inexpensive, but they can be an invaluable form of "cheap insurance" against hassles and expenses for your surviving family should you die. As long as your will meets the requirements of Georgia law, your family is protected.

So please, do your family a favor. Protect them, even after you die, with a Will.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal matters.
Conservatorship
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