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Identifying a deceased person’s financial accounts is one of the more difficult tasks in administering an estate.  What happens to bank accounts when someone dies? What if you miss an account and no one ever comes to claim it?

The law governing this situation in Georgia is called “Escheat”, aka the “Disposition of Unclaimed Property Act.”  Under  Georgia law, if the bank loses contact with the account holder (often when the owner dies and his estate does not seek the account assets) the bank (the “holder”) would have five years (the “holding period”) to attempt to make contact with the owner.  If after five years the funds are still unclaimed, the bank must remit them to the State of Georgia.  The holder must also provide annual reports of the funds’ status to the State of Georgia during the holding period.  Notably, the bank will continue to withdraw fees from the account, as illustrated in this article forwarded to me by my colleague J. Cleveland Hill:

Not even death stops banks from collecting fees.

After the holding period, the funds go to the State of Georgia.  If an heir or beneficiary later discovers the funds,  they can be reclaimed from the State.   You can search for Georgia unclaimed property here:

Georgia Unclaimed Property Search.

There are some lessons to be learned here.  For those engaged in estate planning, it is incredibly helpful to leave an inventory of assets, accounts, life insurance policies, digital accounts and login information, etc. with your estate planning documents so that your beneficiaries can locate all of your funds and keep them from becoming unclaimed property.  For those in the process of administering  a decedent’s estate, it may be prudent to do an unclaimed property search to make sure you have located all of the decedent’s assets.  Note also that the State of Georgia will return unclaimed property free of charge, so be wary if you are approached by an individual or company seeking to do so for a costly fee.

CAVEAT:  This web site and the information contained herein have been prepared for educational purposes only.  The information on this blog does not constitute legal advice, which would be dependent upon the specific circumstances of a particular case.  In addition, because the law can vary from state to state some information on this site may not be applicable to you.

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I hear so many people say “I don’t need to do any estate planning because I’m not extremely wealthy.”  What many do not realize is what estate planning really means, and why it is important for everyone.

Estate planning goes beyond planning for the distribution of assets at death.  An important part of any estate planning consultation involves planning for incapacity:  who will handle your finances if something happens to you and you are no longer able?  who will make health care decisions, or decide where you should live, whether it’s at home, in an assisted living facility, or in a nursing home? what are your desires on these matters?  what kind of medical care do you wish to receive at the end of your life? and how can we protect you from being taken advantage of – financially or otherwise – when you become less able to care for yourself or make responsible decisions?

I linked to an article the other day stating that by 2050, one in five Americans will be over the age of 65.  But these issues do not just affect the aging population – I have seen numerous scenarios where younger individuals suffered incapacity because of an accident or health crisis and would have been significantly better off if they had their estate planning documents in place. It is imperative that people engage in planning ahead of time to make sure their care will be provided for if necessary.  “Estate planning” means planning for life, and everyone should do it.

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When I began publishing this blog, an important goal was to educate the community on those issues my clients often raise, and this is definitely one of those:  When do I need to update my will?

This list is not all-inclusive, but includes some of the more common events that would require a review and possible revision of your estate planning documents (i.e. wills, trusts, financial power of attorney document(s) and/or health care directives):

1.   Birth of a child

2.   Marriage or Divorce

3.   Death of a beneficiary

4.   Significant change in personal wealth or purchase of a life insurance policy

5.   Change in applicable law (tax, trust, will, medical decision-making, etc)

6.   Moving from out-of-state

7.   Significant health issues of the testator (that is, the person who made the will) or a beneficiary, especially if it involves assisted living or skilled nursing care

8.   Desire to change your beneficiary(ies), executor (the person you name to carry out the terms of your will), or trustee (the person you name to carry out the terms of your trust)

9.  Change in a beneficiary(ies)’ status (e.g. divorce, debt, disability, and/or substance abuse problems of a beneficiary)

10.  Several (3 – 5) years have passed since you last reviewed your documents

Any time you review or change your will/trust, you should also review the beneficiary designations on accounts that pass outside your will. This might include life insurance policies, retirement accounts, joint accounts and TOD/POD (Transfer on Death/Payable on Death) accounts.

Finally, as noted, we recommend you review your documents every few years to be sure they still reflect your current wishes.

CAVEAT:  This web site and the information contained herein have been prepared for educational purposes only.  The information on this blog does not constitute legal advice, which would be dependent upon the specific circumstances of a particular case.  In addition, because the law can vary from state to state some information on this site may not be applicable to you.

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I gave a talk to a Parkinson’s support group today, and we went over the Veterans Administration Aid & Attendance benefit. Aid & Attendance (“A&A”) is a VA Pension available to qualifying veterans and surviving spouses of veterans who need the regular help of another because of disability and lack financial resources to cover their medical and care expenses (caveat: the rules are much more technical, but I’m going for simplicity here).

I brought up the “service requirement”, as A&A is only available to those who served during war-time.  Someone in the crowd asked if a certain date was considered “war-time” and I did not remember the dates off the top of my head.  So, to redeem myself, I will put them here!

From a Veterans’ Aid website:

The following list sets out the periods of wartime designated by Congress for pension purposes.  To be considered by the VA to have served during wartime, a veteran need not have served in a combat zone, but simply during one of these designated periods. All other times are considered peacetime. Some veterans served part of their tour of duty during wartime and part during peacetime. Even if a majority of a veteran’s service occurred during peacetime, the service member would still meet the wartime service requirement for eligibility for pension benefits if he or she served ninety consecutive days, at least one day of which occurred during a period designated as wartime. All of the listed dates are inclusive.

Indian Wars: January 1, 1817, through December 31, 1898. The veteran must have served thirty days or more, or for the duration of such Indian War. Service must have been with the U.S. forces against Indian tribes or nations.84

Spanish-American War: April 21, 1898, through July 4, 1902, including the Philippine Insurrection and the Boxer Rebellion. Also included are those individuals engaged in the Moro Province hostilities through July 15, 1903.85

Mexican Border War: May 9, 1916, through April 5, 1917. The veteran must have served for one day or more in Mexico, on the borders thereof, or in the waters adjacent thereto.86

World War I: April 6, 1917, through November 11, 1918, extended to April 1, 1920, for those who served in the Soviet Union. Service after November 11, 1918, through July 2, 1921, qualifies for benefits purposes if active duty was performed for any period during the basic World War I period.87

World War II: December 7, 1941, through December 31, 1946, extended to July 25, 1947, where continuous with active duty on or before December 31, 1946.88

Korean Conflict: June 27, 1950, through January 31, 1955.89

Vietnam Era: August 5, 1964, through May 7, 1975.90 However, February 28, 1961, through May 7, 1975, for a veteran who served in the Republic of Vietnam during that period.

Persian Gulf War: August 2, 1990, through a date to be prescribed by Presidential proclamation or law.91

If a Veteran or surviving spouse is seeking A&A, the veteran must have served during one of these periods.  Later, we’ll discuss the other requirements for A&A.

CAVEAT:  This web site and the information contained herein have been prepared for educational purposes only.  The information on this blog does not constitute legal advice, which would be dependent upon the specific circumstances of a particular case.  In addition, because the law can vary from state to state some information on this site may not be applicable to you.

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My husband and I were riding along in the car the other day, discussing wills.  (I honestly don’t know why we were discussing wills.  Estate planning is not a common topic of conversation in my household, as Jeff – like most normal people, but unlike me – thinks it’s a pretty boring subject).

When I told Jeff the average price of a simple will, his reaction reminded me that many do not recognize the true value of an estate plan.  It is easy to see why a do-it-yourself approach, or perhaps a legal zoom kit, might be tempting.  Unfortunately, these devices are often ineffective and can lead to costly litigation.

Here are some common problems with DIY wills:

1.  They are often executed improperly.  In Georgia, a valid will requires that the Testator/Testatrix (maker of the will) sign before two witnesses who also sign. Among other things, a separate notarized affidavit is also required to avoid having to track down and serve the two witnesses with probate paperwork when the Testator dies.  I’ve seen costly and emotionally damaging litigation arise when the Testator’s intent was clear, but the proper formalities were not completed.

2.   Legal terminology is of utmost importance.  Estate planning attorneys use some strange language in their documents.  This terminology has a well-defined meaning in the law, but is not commonly understood by lay-people.  On the other hand, common language devices are often open to several interpretations and can be difficult to interpret at the Testator’s death. Simply put, an estate planner should know which words to use.

3.  They may not waive the requirement to file inventories and returns.  In Georgia, unless the Testator has waived this duty, an Executor must file an initial inventory as well as annual returns, both of which require court approval. This is a hassle and most clients choose to do away with this requirement in their wills.  However, such a waiver may not be included in a will purchased online, and is highly unlikely to appear in a  self-drafted will.

4.  Missing out on a comprehensive estate planning review.  An estate planning attorney will counsel clients on financial powers of attorney, advance directives for health care, titling of assets, pros and cons of using a living trust, beneficiary designations, and planning for retirement accounts, among other issues.  These are all very important to the estate planning process.

5.  Things are not always as simple as you think.  A client’s wishes might be simple, but the legal parameters involved in implementing the plan can become quite complicated.  Examples include planning for minor children, retirement funds, or unexpected tax issues.  An experienced estate planner can identify these problems and help clients develop effective legal strategies.

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