Personal estate planning notebook for key information

Start a notebook for your family with information that would be important if you die or are suddenly incapacitated. Brainstorm and jot down initial thoughts and begin to collect information in your personal estate planning notebook. There is no better way to demonstrate your love than planning for your family’s future.

Key people and recent account statements

You will have important names and contact information, such as financial and legal advisors and insurance agents. Include a recent statement for every investment account, retirement account, bank account, and dividend reinvestment account you own. Replacing the statements in your notebook quarterly is ideal, but update them at least annually.

What about online accounts?

People conduct personal business online these days. Periodically print a statement for each online account if you do not receive hard copies by mail. For accounts that you have closed or transferred, either remove the statement from your notebook or make an annotation about the disposition of the account.

Stock certificates

Photocopies of any stock certificates or bonds for which you have the actual certificates or bonds, including all stock split certificates.  For stocks held in “dividend reinvestment plans” (DRIPs), a copy of the most recent account statement from the transfer agent for each account.

Safety deposit box

If you have a safety deposit box, include the location of the box, who has access, and consider a current list of contents or box inventory.

Where are the originals of your Will and any Trusts?

Include the identity and location of your original estate planning documents such as your last will and testament and any codicils, and trusts for which you are the grantor, trustee, or beneficiary.

Living will and powers of attorney

A copy of your living will and health care power of attorney (or Georgia advance directive for health care) should be included in your notebook along with the location of the originals.  In South Carolina, the living will is called a declaration of desire for natural death.   Also include the location of your durable power of attorney or financial power of attorney, and any designation or nomination of guardian.

Insurance – life and disability

For life or disability insurance, record the name of the issuing company, the policy number, and include a copy of the policy “declaration page” or summary sheet in your notebook. Note the location of the original documents and any helpful points of contact.

Family information

If you have family members living overseas or geographically dispersed, it might be helpful to list their addresses and contact information.  If you have a deceased  spouse or child, include a death certificate.

Other responsibilities

Are there are others who should be notified if you die? Do you have responsibilities to third parties or charitable organizations?  Are you a guardian or trustee or attorney-in-fact for someone else?

What if I own a business and I die or am incapacitated?

If you own a business or are self employed you will need to include information in your notebook such as how to access your accounts payable and receivable, information about work in progress and customer or client information. What would need to happen if you died suddenly or were disabled?

Business succession and estate planning information

Your personal estate planning documents are probably insufficient to deal with a business, especially if you operate as a corporation, LLC, or partnership. Your executor or heirs need to have proof of your ownership and rights to the business. They also need copies of any shareholder agreements or buy-sell agreements.

Anyone acting on behalf of your business after you die, or once you become incapacitated, must have proper legal authority in order to access business bank accounts or take other action on behalf of the business. Proper planning for business succession or disability is critically important if your family depends on income from your business. An estate planning and business attorney can help identify and address your specific business needs.  Business owners frequently are “too busy” to plan for such contingencies.   Take the time necessary to plan for your possible death or disability.

Copies of Last Will and Testament and any Trusts?

You may want to include an information copy of some, or all, planning documents in your estate planning notebook. This will depend in part on whether you have transparency with the individuals who might see your notebook from time to time. Remember that your heirs would need the original documents to act, so don’t lose track of the location of your originals, and be certain to record this information. If you have concerns that a document might “disappear” or be destroyed by someone displeased with the content, speak with your attorney about ways to safeguard your document.  Good planning makes for good results.

Real property whether owned individually, jointly, or in trust

List any real properties in which you own an interest, including address, county, state, country. List the names of any co-owners. If property is owned by a trust, list the name of the trust and the location of the trust document. A photocopy of the actual warranty deed to each property is ideal; it will help your advisors confirm whether the property is titled individually, joint with rights of survivorship, in joint tenancy, or owned by an entity such as a business or limited partnership.

Tax basis

If you have information about the tax basis for any specific property or investment, include that information or documentation or its location.

Loans and promissory note documents and payment info

If you have loaned money to family members or others, include copies of loan documents such as signed promissory notes, and a record of any payments received. Also, make sure your last will and testament or trust is clear if you consider certain transfers or gifts to your children as advances against their inheritance. Your estate planning attorney can help you accomplish your goals with appropriate documents.

Password and login for email and social media

For email accounts, online “cloud” repositories, bank or investment accounts, and all social media accounts, your estate planning notebook should probably include your login information including current passwords. This information must be preserved somewhere.  Your executor, trustee, or heirs will need access to this information if you die. Your loved ones might need this information if you are incapacitated. Be sure to keep this list current, since we all change passwords frequently.

Protect the security of your information — weigh the risks

How do you keep information in your estate planning notebook safe? As you have undoubtedly recognized, a person with the information in your notebook could potentially wreak havoc with your estate — or loot your accounts using your passwords. As a result, you must consider this security risk when creating and managing your estate planning notebook — and weigh the benefits of collecting and storing this information against the risks inherent in having the information assembled in one place. You can brainstorm with your lawyer and loved ones about security measures appropriate for your family’s information.

Family considerations in sharing estate planning information

While it would be most excellent if all families had only mature, responsible, reliable, and trustworthy members, that is not always the case. Most families have a strained or broken relationship, sibling rivalries, an immature or irresponsible member, or other family dynamic that should be taken into account in estate planning.   Your estate plan is YOURS, so don’t let your kids or other family members pressure you into planning decisions you don’t like.  The contents of your estate planning documents (if not the location) may need to remain totally private until after your death, depending on your individual circumstances.   Family issues are important when deciding where to safeguard your original documents and with whom to share the information described in this article.  Sometimes a trusted friend or advisor plays a role in safeguarding your information.

Second marriages – blended families – special needs information

Second marriages and blended families will have additional issues to consider, not only in the estate planning process but also in information collection, storage, and sharing. Families with a special needs member may want to add a narrative to their notebook with helpful information about the special needs individual and his or her likes, dislikes, challenges, strengths, and sources of joy. This could be enormously important under the right circumstances.

Frequent updates

Once you create your estate planning notebook, please keep it up to date. If you don’t, unnecessary confusion or suspicion amongst family members might be the result. I recommend updating your estate planning notebook quarterly; put it on your calendar “to do” list. You will be surprised how often things change and how easy updates are, once you have the notebook in place. You may even find yourself addressing issues you have avoided once you begin this process!

Copyright Karen S. Hindson, Hindson & Melton LLC – February 2, 2014, updated February 3, 2017

ALSO SEE:

• ESTATE TAXES AND IRAs
• USING A TRUST TO PLAN FOR YOUR INCAPACITY
• IRREVOCABLE LIFE INSURANCE TRUSTS

There are lots of cases in Georgia that say that custody “automatically” goes to the surviving parent when the custodial parent dies.  The judge cannot award custody to someone else without good reason.  Examples of good reason include abandonment, cruel treatment, termination of parental rights, or present unfitness of the surviving parent.  The cases say that a clear and strong case must be made to deprive the surviving parent of custody.

What if the dying custodial parent gives the child to third parties while still alive?  Case precedent says the surviving parent still has priority for custody upon the death of the custodial parent.   Unfitness must be established by clear and satisfactory proof, not merely that the child would have better financial, educational, or even moral advantages with third party custodian.  Would the children suffer physical or emotional harm if custody remained with the surviving parent?

What should you do if you are terminally ill and know that your child’s other parent is unfit to have custody if you die?  The best solution would be to file a petition with the court prior to your death in order to allow the court to consider the present unfitness of the parent likely to survive – and ask the court to award custody (perhaps joint custody pending your death) to a relative or other third party based on clear and convincing evidence that the other parent is not fit.  Otherwise, upon your death, the surviving parent would be the legal custodian by operation of law.

Is there anything else you can do to prevent this scenario from happening?  A recent Georgia Supreme Court case suggests a course of action.  Entrekin v. Friedman, 294 Ga. 429, decided January 21, 2014,  involved a situation where the father died, and members of his family took custody of the child and refused to give the child to the mother.  The mother brought a “habeas corpus” action in court asking for an order that the relative turn the child over to her.  Meanwhile, the father’s sister filed her own petition for custody of the child.  The trial judge denied the mom’s habeas corpus petition and awarded temporary custody of the minor child to the paternal aunt.  The mother appealed.

The Georgia Supreme Court affirmed the trial judge’s decision based on an interesting factual twist.  The Supreme Court agreed that the mother was entitled – at least presumptively – to custody of the child following the death of her former husband.  However, the existing custody order for the child awarded physical custody of the child to the father, and the existing parenting plan specifically addressed the possibility that the father might not survive until the child was grown.  The parenting plan entered by the parties as part of their divorce expressed the “desire of the parents” that the paternal aunt of the child have physical custody in the event the father died.  That parenting plan had been approved by the Court and made a part of the final decree of divorce between the parties!

The presumption that a surviving parent is entitled to custody can be overcome by clear and convincing evidence that the surviving parent is unfit.  In the Entrekin case, the trial court found that the mother was unfit to be the child’s custodian.  The evidence was that the mom had struggled with alcohol and prescription drug addiction, had been convicted of DUI, had endangered children by driving under the influence, had violated her probation, and had recently taken prescription pain medication without telling her doctor she was a recovering addict. Under the divorce parenting plan, she had supervised visitation.  Even though the mom had access to the child’s school and medical records, she was unaware of the child’s special needs.  This was enough to establish clear and convincing evidence of her present unfitness to have custody.

What ideas can we take from this case?  First, if you are getting a divorce from someone who had serious addiction issues or any other issues that would warrant supervised visitation, consider a provision for third party custody in the event of your death as part of your divorce parenting plan.  (Even if you are perfectly healthy.)  If the plan is approved by the court and made the order of the court at the time of the divorce, that order would give the third party some legal standing to take immediate custody in the event of your untimely death.

If you are terminally ill, consider addressing the custody issue while you are still alive.  Even if you are too sick to go to Court, a guardian ad litem could be appointed for your child, and the third party relative could file the petition.

I have always advised my clients who have serious concerns about what happens to their child if they die to create an “if I die” packet of information for their relatives.  This packet could include copies of important evidence that you have collected over the years about the other parent’s unfitness.  This would give the third party hoping to be awarded custody a starting place for a court action.  Criminal information, facebook postings, recordings, correspondence, e-mails, and anything else you consider relevant could be included in your packet.  Think about what you know that would be helpful.  Think about who else knows this information and include names and contact information of witnesses.  For more information see here.

Finally, if you have relatives that you feel strongly should NEVER have custody of your child or be left alone with your child under any circumstances, you should address that also.  Last Wills and Testament often include provisions nominating a guardian for minor children in the event you are not survived by the other parent.  You can also specifically state in your Last Will and Testament that under no circumstances should a certain relative be awarded custody of your child or left alone with your child.  If there are unfitness reasons for your views, you may want to create a package of information as suggested in the paragraph just above detailing why.  The reason could be concerns about child abuse, sexual abuse, emotional abuse, addiction, or any other reason important to you.

These ideas are offered to provoke thought for those who have concerns.  Your specific situation should be addressed with an experienced lawyer who does family law and estate planning, either at Hindson & Melton or the lawyer of your choosing.  Thanks.

© Karen S. Hindson, Dunwoody law firm Hindson and Melton LLC, June 21, 2014

ALSO SEE:

• GEORGIA CHILD CUSTODY
• GRANDPARENT VISITATION RIGHTS UPDATE
• CUSTODY BATTLE BETWEEN GRANDMOTHER AND AUNT

The good news is that Georgia Department of Public Health has created a form called Physician Orders for Life-SustainingTreatment – Georgia DPH Form - that DOES allow the doctor to consider an Advance Directive previously signed by the patient in making the decision to order a DNR.   So, armed with the patient’s properly completed Georgia Advance Directive, you should be able to have the DNR order issued if you are the patient’s health care power of attorney or health care agent under appropriate circumstances.  A copy of the Georgia Department of Health POLST form is provided; more information on the POLST is available at the Georgia DPH website.

This issue underscores the importance of every adult thoughtfully completing an Advance Directive for Health Care.  These forms normally are completed as part of your estate planning or Last Will and Testament preparation, or they can be completed separately.   A link to the Georgia statutory Advance Directive for Health Care form  is provided on our firm’s estate planning resources page.  Consult Hindson & Melton LLC or other estate planning attorney for more information.

Karen S. Hindson – Hindson & Melton LLC, October 28, 2014

ALSO SEE

• USING A TRUST TO PLAN FOR YOUR INCAPACITY
• IMPORTANCE OF ESTATE PLANNING
• EAT  YOUR ESTATE PLANNING VEGETABLES

Create a trust and transfer assets now

Create a trust and transfer your assets into the trust now, naming yourself as the initial trustee.  So long as you are still able, you continue to manage trust assets.  The terms of your trust provide for transfer of management of your assets to a successor trustee if and when you become incapacitated.  Your trust names successor trustee(s) and specifies the procedure for determining if you are incapacitated.  You can include safeguards in the trust to protect against overeager successor trustees who may be interested in taking control while you are still capable of handling your own affairs.

The successor trustee could be a trustworthy (and financially savvy) family member, or you can name a bank trust department or trust company.  Sometimes, individuals are named as co-trustees with a corporate trustee.  Trusts are very flexible instruments that can be tailored to your specific wishes, needs, and concerns.  You can amend your trust as needed after you create it to accommodate changing life circumstances and objectives.

If you have a trust, you should understand its purpose and the fundamentals of how it is designed to work.  You should know what assets are currently owned by your trust and the rationale of why.  If you are uncertain about these things, you should consult with a qualified estate planning attorney about your trust.

Create a trust now and transfer assets later

If you don’t want to transfer your assets into the trust immediately, you can create the trust now but not fund it.  An accompanying power of attorney can enable, or instruct, your attorney-in-fact to transfer your assets into your trust for management in the event you become incapacitated.

Whether you plan for your possible future incapacity through powers of attorney or a trust or a combination thereof, it is most helpful to plan in advance.  Otherwise, if you become incapacitated, it is likely that someone will have to file a petition with the Georgia or South Carolina Probate Court to be named your legal guardian and/or conservator.   Court supervision of any conservator would be required by law, and there would be additional ongoing expenses such as filing regular reports with the Court and seeking the Court’s permission to spend your funds to take care of you.  Having your trust in place can avoid this altogether and give you much more privacy.

Who should be appointed trustee?

It is important that you give serious thought to who you might name as your successor trustee.  Do not name individuals likely to mishandle the responsibility.  Trusts frequently waive safeguards that a Court would impose on a conservator, such as posting a “security bond” which would protect against misappropriation of trust assets.  Sometimes, even well-intentioned family members might be inept at handling your finances.  You may conclude that naming a corporate fiduciary as your successor trustee is your best available option.

A qualified Georgia or South Carolina estate planner should work with you to prepare your trust and any amendments.  Together, you can conduct a thoughtful review of your financial and family circumstances to design an estate planning strategy just for you.

© Karen S. Hindson, Hindson & Melton LLC      October 13, 2013

ALSO SEE:

• LIVING WILL FOR GEORGIA OR SOUTH CAROLINA RESIDENTS
• ESTATE PLANNING NOTEBOOK
• ESTATE PLANNING CHECKUP

Concerns About the Other Parent.

Sometimes the child’s other parent would be a disaster as a custodian of a child.  They might be a substance abuser, mentally ill, emotionally cruel, or just plain evil.  Sometimes the other parent has never been involved with the child.  If I die who gets my child?  The law generally views the surviving parent as entitled to custody of your child if you die.

Georgia law states “Upon the death of either parent, the survivor is entitled to custody of the child; provided, however, that the judge, upon petition, may exercise discretion as to the custody of the child, looking solely to the child’s best interest and welfare.”  O.C.G.A. § 19-9-2.  But case after case finds in favor of the surviving parent if there has not been a termination or forfeiture of parental rights.

What should you do if you live in fear of your child going to live with the child’s other parent if you die?  You and your attorney should come up with a plan specific to your case.  Typically, such a plan would include at least the following:

• nominating a guardian and a successor guardian for your child in your Last Will and Testament, and going further to specifically state in the Will that it would be harmful for your child for the other parent to have custody of the child.  This is not the time for a home-grown Will; you should have a qualified attorney familiar with both estate planning and family law work with you to draft the document.
• making sure that your child has ample opportunities to develop meaningful relationships and strong bonds with the individuals you have named as guardian and successor guardian.
• creating an “evidence packet” for your guardian and/or successor guardian to use in Court to fight (if necessary) for custody of your child in the event of your death.  This evidence packet should include certified copies of any applicable court records or transcripts that might be helpful to the case, names and contact information for individuals who are first-hand witnesses to behavior or events that led to your concerns, certified medical records, police reports, photographs, affidavits, copy of your Last Will and Testament and information about where the original is kept, signed and notarized statement from you providing background information and details, etc.  Your attorney can help make sure that the evidence you collect is as bullet-proof as possible — you want to arm your child’s advocate with evidence that would be admissible in Court in a proceeding about the child’s custody.
• keeping your “evidence packet” up to date with current contact information on your live witnesses and current documents.  Documents should be certified copies whenever possible.
• providing funds for your nominated guardian and/or successor to use to fund a Court case, especially if they would not otherwise be able to afford it.   Providing funds for this purpose in your Will may not be sufficient, as probating the Will takes time.  Setting up a joint checking or savings account with the guardian with sufficient funds to get them started is one possibility.  Prompt legal action may be required.  A modest-sized term life insurance policy naming them as beneficiary is another option to provide funds in a relatively short period of time.

Concerns About Third Parties.

Sometimes the question “if I die who gets my child” reflects concern about third parties.  Perhaps your child’s other parent is already deceased, and your worst nightmare is your mother-sister-cousin or in-laws getting custody of your child.  This is a somewhat easier case than the case of the surviving parent, but the advice is still the same.  Work with your attorney to make a plan.  The plan would include, at a minimum:

• nominating a guardian and successor guardian for your child or children in a valid Last Will and Testament.    In the Will, spell out that under no circumstances should person X, or persons X and Y, be awarded custody of your child.
• making sure the guardian and successor have the opportunities to develop strong and healthy relationships with your children while you are alive
• create the “evidence packet” described above.  A notarized affidavit or at least a handwritten statement, signed and dated, fully explaining your concerns could be helpful.  While such a statement might not be admissible in Court, perhaps it could be considered by a guardian ad litem or other advocate for the child in the event of a custody fight.
• providing funds for the guardian and/or successor to go to Court if needed to fight for your child.

Don’t engage in risky behavior.

If you are concerned about who gets your child if you die, then do your best to stay safe and healthy!   It is a no-brainer that you should do your very best to stay around until your children are grown so it never becomes an issue.  Think honestly about whether there are changes you should make in your lifestyle or choices that increase your odds.  This might mean saying no to skydiving, cave-diving, smoking, riding motorcycles, and a host of other non-mandatory behaviors that increase your risk.

Don’t live in fear.

Ultimately, there are many things outside our control  If you are concerned about who gets your child if you die, then be proactive and make your plan.  Be serious about your making your documents, putting together your evidence packet, and funding the fight.  Review your packet once a year to make sure no updates are needed.  Then live your life without fear and enjoy your children!

©Karen S. Hindson, Hindson & Melton LLC – April 19, 2013

This FAQ does not constitute legal advice.  For more information, or for advice concerning your specific situation, consult Karen S. Hindson or Joy T. Melton of Hindson & Melton LLC .

An individual appointed by the Probate Court to manage the property of an incapacitated adult is called a “conservator”.  The individual who is responsible for making decisions concerning the health and safety of the adult is called the “guardian”.

When will the court appoint a conservator for an adult?
Only if the court finds the adult cannot make or communicate significant responsible decisions concerning the management of his or her property.
The conservatorship must be designed to encourage maximum self-reliance and independence of the adult and will only be ordered if less restrictive alternatives are not available or appropriate.

What is the order of preference for appointment as conservator?
The list is similar to the order of preference for appointment as guardian, including a person nominated by the incapacitated adult, the spouse, the adult child, or the parent of the incapacitated adult.  A friend or the county guardian may be appointed if others are not available or appropriate.

Who may file a petition for appointment of a conservator?
Any interested person may file a petition in the county of domicile of the proposed ward or where the proposed ward is found.  The petition must be sworn to by two petitioners who have seen the proposed ward within the last 15 days or one petitioner and one physician, psychologist or licensed clinical social worker.

What is the procedure after filing of the petition for conservator?
It is the same procedure as the petition for guardianship – the court reviews the petition for probable cause, and if probable cause is found, serves the proposed ward with a copy of the petition and notice of his or her rights, including the right to an attorney, and the court appoints an evaluator (physician, psychologist, or licensed clinical social worker) to meet with the proposed ward and report to the court.  The proposed ward’s attorney may file a response to the evaluation.
After review of the evaluation, the court believes there is probable cause, the court schedules a hearing.

What if both a guardian and conservator are appointed but are not the same person?
The court approves a budget plan to provide for the ward’s support, care, education, health, and welfare.

Is there a procedure for appointment of an emergency conservator?
Yes, it is similar to the procedure for emergency guardian.

If you have questions about your situation, contact Karen S. Hindson of Hindon & Melton LLC.

This FAQ does not constitute legal advice.  For more information, or for advice concerning your specific situation, consult Karen S. Hindson or Joy T. Melton of Hindson & Melton LLC.

The individual who is appointed by the court to be responsible for making decisions concerning the health and safety of another adult is called the “guardian”.

What Court handles guardianship cases?
The Probate Court of the county in which the incapacitated adult is domiciled or is found.

Who may be appointed guardian of an incapacitated adult?
An individual or a public guardian may be appointed, or the Department of Human Resources.  The court will not appoint a guardian who has a conflict of interest with the incapacitated adult unless the court determines that the appointment would be in the adult’s best interest or the conflict of interest is insubstantial.

Under what circumstances will the Court appoint a guardian?
Only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.  The guardianship will only be ordered after a determination that less restrictive alternatives are not available or appropriate.

What is the order of preference for appointment as guardian?
Under the law the court is to appoint that individual who will best serve the interest of the incapacitated adult, considering the order of preferences listed here –
1- an individual nominated by the adult in writing
2- the spouse of the adult or someone nominated by the spouse
3- an adult child of the adult or someone nominated by the adult child
4- a parent of the adult or someone nominated by the parent
5- a guardian who was appointed to serve when the adult was still a minor
6- a guardian previously appointed by Georgia or another state
7- a friend, relatives, or any other individual
8- any other person found suitable and appropriate and willing
9- county guardian

A public guardian may be appointed if no other person is available to serve as guardian, or the Department of Human Resources may be appointed.

Who may file a petition for appointment of a guardian?
Any interested person.
The petition must be sworn to by two petitioners who have seen the proposed ward (incapacitated adult) within the last 15 days, or by one petitioner and one physician, psychologist, or licensed clinical social worker who has examined the adult within the last 15 days.

What happens once a petition for guardianship is filed with the Court?
The court reviews the petition and decides whether there is probable cause to believe that the proposed ward needs a guardian.  If so, the court has a copy of the petition delivered to the proposed ward, notifying him or her of their rights, including the right to counsel.  The court also gives notice by mail to certain individuals including the proposed ward’s spouse, children, and anyone who is nominated to serve as guardian.  If there is no spouse or adult children, friends or other adult relatives may receive notice.

Who evaluates the proposed ward for the Court?
The court appoints a physician, psychologist, or licensed clinical social worker to evaluate the proposed ward and make a written report to the court.  The proposed ward may be silent.  His legal counsel may be present but may not participate.  The proposed ward’s legal counsel may file a written response to the evaluation.

When is a hearing scheduled?
After receiving the evaluator’s report, if the court finds there is still probable cause that the proposed ward needs a guardian, the court schedules a hearing and notifies the proposed ward, his legal counsel, and other adults named in the petition.  The hearing normally takes place at the probate court.

What if an emergency guardian is needed?
Any interested person may file a petition for appointment of an emergency guardian, where there is an immediate and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed.
If the court determines there is probable cause, a hearing is scheduled between three and five days after filing of the petition.
Under some circumstances an emergency guardian can be appointed to serve until the emergency hearing takes place.
Emergency guardianships last not longer than 60 days.

Contact Karen Hindson for more information.