A couple was dividing their assets during their divorce. The wife assumed her husband’s pension was not up for grabs, because it was in his name, and he would not be entitled to receive any benefit for another fifteen years—to her it was worthless. She also was willing to let her husband keep his business. After all, she didn’t know how to run it. She was happy just to keep the house and some savings. In Georgia, the law provides that assets and debts are to be “equitably divided.”In other words, the division must be fair. “Would this be a fair split of the assets?”she asked. It depends on several factors.

Only those assets and debts that were acquired during the marriage are divided pursuant to the divorce. These assets are called marital property. There are exceptions, however, including property received as an inheritance, premarital property, and gifts from third parties. These exceptions are the separate property of the spouse who received the property. If the husband in the example above earned the pension and acquired the business during the marriage, both are subject to equitable division. Otherwise, they are not.

All kinds of property are divisible, including tangible assets such as real estate, furniture, automobiles, bank accounts and investments, and intangible assets such as residuals, patents, and copyrights. Retirement accounts, pensions and annuities may also be divided to the extent they were earned during the marriage, even though neither spouse is actually receiving or entitled to receive any benefits at the time the divorce is granted. Appreciation of separate property assets caused by the efforts of either spouse may also be divided at the divorce. The value of a family-owned business, including goodwill, may also be considered. In the above example, business appraisers and financial experts would be hired to determine the value of the business and pension.

Once the values of the various marital assets and debts are determined, one fair way of determining who gets what is to divide the parties’ net worth equally and distribute assets and debts such that each ends up with half their net worth. However, equitable division does not necessarily mean equal division. A judge or a jury may consider other factors, such as each spouse’s contribution to the acquisition and maintenance of the property (such as money paid or time spent in upkeep as a homemaker), the purpose and intent of the parties regarding the ownership of the property, the estate of each of the parties, the duration of the marriage, prior marriages of either spouse, and the contributions or service of each spouse to the family unit.

In this case, without the input of experts and an attorney discerning the nature of all of the assets, it would not be wise to say whether the wife’s proposed division was fair or not.

by Tamar Oberman Faulhaber

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For more information, go to www.national-law.com or contact Tamar Faulhaber at 404.846.2001 or TFaulhaber@Georgia-Law.com.

Elder law actually covers many different legal fields. It includes:

● wills and trusts
● powers of attorney for financial management
● health care directives
● guardianships
● probate;
● estate and trust administration
● Medicare claims and appeals
● Medicaid and long-term care planning
● social security and disability claims and appeals
● nursing home issues, including patients rights
● housing issues
● veterans benefits
● elder abuse
● age discrimination in employment
● mental health law

Although most elder law attorneys do not address all of these areas in their practice, they will be able to identify issues and refer clients to colleagues with the appropriate expertise. Elder law attorneys can also provide referrals to geriatric case managers and social workers, home-health-care providers, assisted-living facilities and nursing homes.

Lawyers who practice in elder law do so because they respect and appreciate their elderly clients. Elder law attorneys have offices that are wheelchair and walker friendly, and staffs trained to work with clients who are often struggling with losing their independence, mistrustful of lawyers and the legal system, and reluctant to share their financial and personal information. If an elder client is too frail to travel to the lawyer’s office, many elder law attorneys will make a home visit.

An elder law attorney can provide the most help while the elder client still has the mental capacity to understand and sign basic legal documents such as a will, power of attorney and health care directive, and provide information about assets, liabilities, income, health insurance and long-term care insurance. If dementia has progressed to the extent that the elder is not able to effectively communicate, and the necessary legal documents are not in place, the attorney’s role will be to assist with a legal guardianship.

Because each state’s laws are different, it is important to find an elder law attorney in the state where the elder lives. A good resource to locate an out of state elder law attorney is the National Academy of Elder Law Attorneys (NAELA), an organization of approximately 3,500 members across the country. You can contact NAELA at its new headquarters outside of Washington, D.C. at 1577 Spring Hill Road, Suite 220, Vienna VA 22182, or online at www.naela.org. Other ways to find an elder law attorney are through a state or local bar association, or a local agency that provides services to the elderly.

Debra Robinson is an Alpharetta attorney and a member of NAELA. Contact her at 770.817.4999 or drobinson@robinsonmiller.com.

Reason #1: Speed up the Process

In Georgia, probate can take just a couple of weeks if all of the decedent’s closest living relatives, called the “heirs,” are adults and consent to the Will’s validity, and if a Will is accompanied by a self-proving Affidavit. Without a valid Will, a surviving family member must either post a bond or wait for legal notices to be published for a month before earning the authority to act for the estate. By the time the notice gets delivered to the newspaper and the publication finishes, almost two months will have gone by. Even if you have a Will, not having a self-proving Affidavit means that one of its witnesses will have to be found before the Will can be probated. The witness will need to sign a set of questions called Interrogatories confirming that he or she saw the Will being signed. These steps can slow the probate down and keep your assets from being distributed to your family members in time to meet their needs.

Reason #2: Keep Transfer Costs Down

The costs of probate in Georgia depend heavily on whether a person had signed a valid Will, and whether the Will was drafted with Georgia law in mind. A Will should appoint an Executor and waive bond. The Will should also grant the Executor the fiduciary powers needed to sell real estate and to serve without filing an inventory or annual returns. A Will that lacks these ingredients may be valid, but create substantial extra expenses for the Executor. In some families, expensive conflict can be avoided by setting up assets to flow to beneficiaries outside of probate. Trusts set up to hold assets are immediately available to your beneficiaries. Another easy, no-cost method of adding flexibility is to update beneficiary designations so that there is both a primary and a contingent beneficiary on all life insurance and retirement accounts. Be careful, though, never to name a minor as a beneficiary. Choose a Trustee to hold funds for them instead.

Reason #3: Giving is Golden

When asset values and interest rates are both low, there is a rare opportunity to transfer wealth down to future generations with a minimum use of gift and estate tax exemptions. Since a greater estate tax planning benefit comes from a steady stream of asset transfers when compared to a sizable one-time inheritance, starting a gifting program now makes the most sense from a long-range estate tax planning standpoint.

by Chris Miller

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Christopher Miller is an attorney with Robinson & Miller, PC in Alpharetta.

For more information, contact him at 770.817.4999 or   cmiller@robinsonmiller.com.

COMPETENCY.

You want to find someone who knows what they are doing. Usually, those attorneys who specialize in family law related work (e.g., divorce, support, custody, adoption, contempt, and paternity) better understand legal issues that arise than those who have a general practice (e.g., personal injury, criminal defense, and civil or corporate litigation). Peruse advertisements in the phone book and Web sites to ascertain their areas of practice. Also consider how long they have been in practice and their litigation experience. How many trials and hearings have they done? Have they done jury trials? Were they successful? If your case involves children, does the attorney have children? What resources or professionals do they rely on to supplement their realm of knowledge. Do they have staff to assist them? The more experience and resources they have, the more competent they will be.

COST.

Be realistic about your budget for legal expenses. You get what you pay for. Good attorneys usually require substantial initial retainers, bill an hourly rate against the retainer, and require replenishment. At the same time, they should be efficient and rely upon associates or seasoned assistants and paralegals who charge less to complete rote tasks. They provide billing statements on a regular basis to inform you how they are using your funds. Ask about their billing rates and frequency of billing statements. Do they take credit cards? Do they have a written retainer agreement? By being informed, you can monitor and assist in managing the costs of your litigation—either by choosing less expensive strategies or by involving yourself hands-on in preparing and organizing your fi le. Hire the attorney you can afford, find other sources of financing, and ask about getting the other side to reimburse your fees.

COMMUNICATION.

You should feel comfortable that your attorney not only listens to you, but hears where you are coming from, acknowledges or helps you develop your goals, and frequently updates you on the status of your case. You should receive telephone calls, e-mails and/or letters from your attorney. Your attorney should not take long to respond to your inquiries. Ask about their policy and practice about telephone calls and status updates. Do they give out their cell phone?

COMPASSION.

You will be relying upon your attorney to make important decisions. You want someone who cares about you and your case. The only way you can really tell if your attorney cares is by meeting with her face to face and relying on your gut and first impression. Did she listen? Did you walk away better informed with good direction? Do you feel better after having spoken with the attorney?

Hire the person you feel confi dent will help you meet your legal goals while providing compassionate counseling in a timely and cost efficient manner.

by Tamar  Faulhaber

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To set up an initial consultation to see if Tamar Faulhaber is the best family legal counselor for you or someone you know, contact her at Vernis & Bowling of Atlanta, LLC at  TFaulhaber@Georgia-Law.com or 404.846.2001.

Who Qualifies?

The main requirements for a pension for a veteran or widow(er) are:

• the veteran served at least 90 days of consecutive active duty service, one day of which was during a war-time period;

• the veteran’s discharge was not dishonorable;

• the claimant’s income and assets are under certain limits; and

• the claimant has a permanent and total disability.

Assets

The Veterans Administration looks at whether a claimant has suffi cient means to pay for care. Although there is no specified limit on the amount of assets, the commonly used amount is $80,000, excluding a home, car and personal belongings. Because there is no penalty for transferring assets, it is possible for a claimant with a greater net worth to create a plan to preserve assets and still qualify.

Income

Even if a claimant’s income exceeds the maximum limit, medical expenses can be applied to reduce income. Home health care, assisting living, or nursing home costs will offset a claimant’s monthly income and allow the claimant to qualify despite the income limit.

Disability

To meet the disability requirement, the claimant’s doctor must confirm that the claimant is house-bound and in need of assistance from another individual. The disability does not have to be service related. People aged 65 or older are presumed to be disabled and are not required to be rated as disabled under the VA schedule.

Benefits

There are three types of pensions available, each with different eligibility requirements and each paying different amounts. The largest pension benefit is called Aid and Attendance, and is available to a veteran or widow(er) who is either blind, living in a nursing home, or in need of assistance to manage the activities of daily living.

In these difficult economic times, an extra $1,949 a month in tax-free income is not something to ignore. If you’re a veteran or widow(er) who might qualify, or if you have a family member who might qualify, now is the time to get started on the application process.

Information and assistance is available online at www.va.gov through veterans’ service organizations, and through attorneys or other agents who have been accredited by the Veterans Administration.

by Debra Robinson

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Debra Robinson is an Alpharetta attorney and is accredited by the Veterans Administration. Contact her at 770.817.4999 or  drobinson@robinsonmiller.com

You shouldn’t stay if there is trouble. When your relationship involves any kind of abuse or violence—be it physical, emotional, verbal or psychological—job loss and financial stress tend to make the situation worse. There are resources, shelters, hotlines, and counseling available. Most law enforcement, judges, and court personnel are trained and are there to protect you. The decision to leave should be made regardless of economic tides.

But if you go, it will cost double. When the family splits up, two households are created where there was once one, increasing costs almost twofold. Making ends meet becomes even more difficult if either or both spouses suffered a job loss or is having a tough time earning an income. Now may not be the time to increase liabilities for the family, especially if you can’t sell your home.

So, if you want your house off your back. . .

Divorce may not be the answer. On the other hand, the depressed housing market need not delay a divorce. Although it makes things simpler to sell the house and split the proceeds, the sale and distribution can be deferred in a divorce decree. Payout of a spouse’s portion of the equity can be made over time.

Nonetheless, marital debts do not go away once a divorce is filed—unless both spouses fi le bankruptcy. However, divorce and separate maintenance actions can be used as tools to allocate the debt to one spouse or the other. Even if you are not sure how the debts will be paid off, knowing who is supposed to pay what can help reduce stress.

One day your job is fine; the next day it’s black…

Some may believe that fi ling for divorce while they are unemployed will work to their benefit because their support obligations will be lower. In determining child support and alimony, the Court will consider current earnings; however, it may not ignore past earnings, education, skills, spending habits and other predictors of future earnings or a spouse’s “ability to earn.” That spouse may risk being court-ordered to pay support in an amount that exceeds his or her current budget. To prove an “inability to earn,” a spouse may need to demonstrate efforts made to locate employment. A vocational or economic expert may be required to prove that a specific industry is not hiring, or that there are no jobs for which a spouse is qualified—but that may be cost prohibitive. In either case, so long as some support is ordered, it can be increased later once earnings increase. This is true for both alimony and child support.

If indecision is bugging you. . .

Seek marital, credit, and legal counseling, and try to work out something that makes sense for both of you.

by Tamar Oberman Faulhaber

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Tamar Oberman Faulhaber is an Attorney at Law at the firm of Vernis and Bowling of Atlanta LLC. For more information contact her at 404.846.2001 or  www.Georgia-Law.com\tfaulhaber.htm

In 26 years as an estate-planning and probate lawyer, I have seen the same costly mistakes over and over again. People fill out beneficiary designations and co-own real estate or other assets without understanding how their choices will impact their families.

Minor Children as Beneficiaries

Children under the legal age of majority (age 18 in Georgia) can not legally manage assets. If you name a minor as beneficiary of life insurance, retirement assets, or payable on death accounts; or if you name a minor inyour Will, or die without a Will with a minor child; you will cause unnecessary costs and delays. Someone will have to be appointed as Conservator by the Probate Court to manage assets left to the child. The prospective Conservator must pay for a surety bond and wait for Court approval before gaining access to the assets. Once appointed, a Conservator must provide annual accountings to the Court, obtain Court permission to sell or mortgage the minor’s property, keep the child’s investments in government bonds, cash or CDs, and distribute everything to the child at age 18.

You can include minor children in your estate plan without involving the Probate Court by designating a custodial account as beneficiary or by creating a trust. With a trust, you can delay the age at which the child will get control until 25 or 30, or even older.

Failure to Change Beneficiaries

Many people have multiple IRA’s, 401ks, and life insurance policies. As the years go by, and circumstances change, they fail to change their beneficiaries. If you get married or divorced, you should review your beneficiary designations. Is an ex-spouse named as beneficiary of your life insurance? Even if you’ve remarried, your exwill get the check. The beneficiary designation to your ex-spouse will control the insurance payment even if you name your current spouse as beneficiary under your Will.

Look at each of your accounts and plans periodically to make sure the beneficiary designations are current.

Joint Ownership of Real Estate

People assume that joint ownership of real estate means that at the first death, ownership will pass to the survivor. Not always. It depends on the words in the deed. In Georgia, unless the deed specifically creates ownership with right of survivorship, having two or more owners just means each owner owns a percentage of the property. So when one owner dies, that share will pass according to his or her Will, or the intestacy laws if there is no Will.

If you own your residence jointly, do you know what will happen when your co-owner dies? Find a copy of your Warranty Deed and look for the “with rights of survivorship” language. If the ownership isn’t with right of survivorship, that can be corrected by a Quitclaim Deed. State laws differ, so if you co-own real estate outside of Georgia, the rules of that state will apply.

Joint Bank Accounts Across Generations

Putting children’s names on bank accounts as joint owners can have bad consequences. If an elderly mom with a son and daughter adds her daughter’s name to her accounts so her daughter can help manage her finances, what happens to those funds when Mom dies? Even if Mom’s Will divides her estate equally between her two children, the daughter gets everything in those joint accounts.

If Mom needs help with check writing, there are better methods. Mom could designate her daughter as agent under a Financial Power of Attorney, or create a Revocable Living Trust, with the daughter as Co-Trustee.

Good estate planning requires more than having a Will. Without careful attention to beneficiary designations and joint ownership, you could be making a mistake that will cause your heirs increased expenses, lengthy delays, and possible disinheritance.

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Debra Robinson is an Alpharetta attorney specializing in estate planning.

Contact her at 770.817.4999. or drobinson@robinsonmiller.com