There are all kinds of reasons to wait before doing an estate plan. We hear them all the time:
“I am not out of debt yet.”
“I am not wealthy enough.”
“I am too busy.”
Or, very often, “We aren’t even married.”
There is a dangerous myth out there about estate planning that says you don’t need an estate plan unless you are married. However, if you are in a relationship and are unmarried, having an estate plan is absolutely essential.
Unmarried couples, especially those who have children, share assets, or live in the same home, have unique needs when it comes to planning for the future. Georgia laws do not grant the same financial protections to unmarried partners as they do to married spouses. In fact, if an unmarried person gets sick, injured, or passes away, there is very little default protection for their partner. This is where a proactive plan comes into play. To protect assets and your future, it is time to debunk the myth that unmarried couples don’t need a plan.
Why Should I Plan My Estate?
Regardless of age, marital status, parental status, or financial status, all couples can benefit from proper estate planning. When you plan for the future, you can ensure your partner is financially protected. More importantly, you can also ensure that you are able to participate in their medical decisions should they fall ill or become incapacitated. There are a number of estate planning options for unmarried couples living in Georgia, including:
Will: A document that dictates how your estate, including all assets and property, are divided after your death.
Revocable living trust: Transfers ownership of your assets into a trust, which is administered by you, as a trustee, until you pass or become incapacitated. Then, control of the trust passes to your chosen successor trustee, who can manage your assets for the benefit of whomever you choose.
Financial power of attorney: Authorizes a designee to act on your behalf and make legal and financial decisions for you when are unable to do so.
Advanced healthcare directive: Authorizes a healthcare proxy and expresses your healthcare wishes in the event you become incapacitated and are unable to participate in your medical care.
Everyone is entitled to choose whether they have a will, trust, or other estate planning instrument. However, if you pass away without a will or trust in place, Georgia law dictates how your estate is divided and administered. Dying without a will is called “intestacy” and can have significant consequences for your loved ones. When someone dies intestate, the courts will divide their property amongst their living relatives. The law does not permit courts to give assets to unmarried partners in these cases.
It is important to protect your partner by planning your estate now, so they can benefit from your assets after your death. Estate planning can be a daunting process to undertake alone. State laws often place certain requirements on the execution of documents such as wills in order for them to be legally valid. Before you take action, consult with a seasoned estate planning attorney who can help you make the best choice for you and your partner.
Wills vs. Trusts: Which Should I Choose?
Wills are the most common estate planning instrument for unmarried couples in Georgia. Essentially, a will is a legally enforceable document that specifies who receives your assets when you die. Collectively, your assets and property are referred to as your “estate.” In your will, you can determine how your estate is divided, and what specific assets your partner will receive after your death.
A revocable living trust also lets you decide how your assets are divided and administered. Unlike a will, this kind of planning tool does not wait to take effect until after your death. As the name suggests, a revocable living trust is established and executed while you are alive. Trusts are legal instruments that give a trustee control over assets and gives instructions on how the trustee should manage assets for the benefit of named “beneficiaries.” However, with a revocable living trust, you can name yourself as the trustee during your lifetime, so you can continue to access and use your money and property as you see fit.
When you establish a revocable living trust, you will also name a beneficiary. You can name anyone, including an unmarried partner, as your beneficiary. When you pass away, your beneficiary will inherit all assets that remain in the trust without having to go through probate, which is the court administration of a will. Probate can be a long, drawn-out process, and it can take up to year to complete. This means surviving loved ones may not have access to much-needed financial assets and property for quite some time. To avoid probate, you can place your assets in a revocable living trust and name your partner as the beneficiary.
Financial Power of Attorney
Another particularly useful planning instrument is the power of attorney. A power of attorney, or POA, allows you to authorize a designated person to make financial decisions on your behalf. A financial POA can temporarily give your partner access to your money and property and be able to manage those assets on your behalf if you unable to make those decisions yourself. While a POA is not a substitute for long-term estate planning, it can give you peace of mind that your assets are safeguarded if you ever become incapacitated. Some of the many benefits of creating a POA include:
- Allows your partner to access your financial accounts
- Allows your partner to pay your mortgage, bills, and personal expenses
- Ensures your partner is able to pay for your healthcare when necessary
- Allows your partner to deposit checks or cash into your bank account
Advanced Healthcare Directives
Similar to a POA, an advanced healthcare directive can protect you should you become incapacitated due to illness or injury. People at every age can fall ill or get hurt suddenly and may become unable to communicate their healthcare wishes to their doctors. In those situations, an advanced healthcare directive expresses your decisions regarding which medical treatments you do and do not want to receive. Furthermore, you can appoint your partner (or any other trusted adult) to serve as your healthcare proxy and to make medical decisions on your behalf. This is especially important for unmarried couples, because state law does not permit unmarried partners to make medical decisions on their loved one’s behalf without advanced healthcare directive.
When working with an attorney to draft an advanced healthcare directive, he or she will likely also suggest a HIPAA release form. This form allows you to designate particular individuals with whom you want your medical care professionals to be able to discuss your treatment. For unmarried partners, there is no default permission that allows doctors and nurses to discuss medical care without written permission. A HIPPA release can serve as that written permission.
How Can an Estate Planning Lawyer Help?
As noted above, the law requires that wills, trusts, powers of attorney, and advanced healthcare directives be executed properly in order to be valid. There are certain processes and requirements that must be followed when creating these important legal documents. You will need to make sure that your estate planning documents are valid and enforceable to avoid lengthy and expensive legal proceedings in the future.
Fortunately, you do not have to undergo estate planning alone. Instead, rely on the help of an experienced estate planning attorney like those at Brian M. Douglas & Associates. Our team relies on our expertise to help clients square away their estate planning matters sooner rather than later. If you are an unmarried couple who is ready to start thinking about the future, give us a call to learn more about how we can help.
