Til' Death Do You Part

BREAKING NEWS! DIVORCE EQUALS DEATH!

Just kidding, if that was the case, lawyers like myself would certainly be out of businesses (and living a pretty sad life). But this is, believe it or not, a true statement of law when it comes to the question, “What happens to my will if I get divorced?”

The law in Georgia is summed up as follows: if you have a valid will and get divorced, your ex-spouse is treated as if they had died before you did (which is termed “pre-deceased”).  So what does that mean for you?  Your former spouse will be treated as if they had died before you-meaning they cannot inherit under the will. Problem solved!

Not so fast, what if you die while your divorce is pending? Different result. What if you and your ex-spouse have children? Well, then they may take the gift, but that’s not certain either. And at this point, you will no longer be around to say whom you want to take the inheritance instead.  It is likely that your will should be revisited and revised after divorce.

What happens to your will if you remarry? That’s the even scarier part—your will is revoked entirely in Georgia upon a subsequent marriage – meaning, your will is null and void, and none of your property will pass as you may have desired.  Take, for example, Hoyt Cromer.  Hoyt tried to make his marriage work, but he just couldn’t do it, and he and his wife divorced.

Hoyt had executed a will in 1961, a few months, before his divorce. He then gave love another shot (à

la Kim Kardashian) and remarried in 1963.  When the time came for Hoyt to meet his maker, his brother probated his will, but his new wife challenged the will-saying that her marriage to Hoyt revoked the 1961 will. The Court then held that unless Hoyt’s will contained a clear, magical language, that the will was “in contemplation of” Hoyt’s new wife, it was totally revoked.*

As you can see, there are all sorts of “X-Factors” at play when probate law and divorce law meet. 

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*Facts based on the case of Johnson v. Cromer, 234 Ga. 73(1975). 

You Will or You Won't?

I recently stumbled across this list of: 

Five Reasons to Die
 Without a Will
source: http://www.hughchou.org/calc/withoutawill.html

1.     The court can do a better job deciding how to disburse your assets than you can.

2.     The court can choose a better personal representative to handle your estate during probate than you can.

3.     The court can choose a more caring guardian for your minor children than you can.

4.     The government will use your estate tax dollars more efficiently than your favorite charity would use a charitable bequest.

5.     Your grieving loved ones will be better off looking after your affairs without your will.

            Interesting, the lesson here? – let someone else do it.   A court can choose who’s better suited to take care of my child? And my grieving loved ones will handle dealing with the creditors and debts I’ve left behind? Someone else can decide.   

            On the other hand, I thought about one Adam Yauch.  More aptly known as the Beastie Boys’ (one of the rap groups responsible for bringing hip hop music into the mainstream in the mid-to-late 1980s)  “MCA”, Yauch passed away from cancer in 2012. 

            Yauch’s will named his wife as the executor of his estate and provided that his wife and daughter would receive all of his estate, worth approximately $6.4 million. Most uniquely, Yauch stated that he didn’t want anything relating his “artistic property" to be used in advertising.[1]  He “might stick around or [he] might be a fad,” but he certainly “won't sell [his] songs for no TV ad.” It seems Yauch got pretty clear on what he wanted his will reflected that.  (credit: ARTS, BRIEFLY; Yauch's Will Protects His Artistic Integrity, James C. McKinley, Jr., available here)

            All wills aside, what about healthcare decisions? The bottom line is, no one is talking about making critical healthcare decisions because they don’t want to. It’s an uncomfortable subject that no one wants to think about. Many doctors won’t even broach the subject with most patients, especially elderly patients.   

            Another fact to consider is that more and more people are growing older without children or spouses to help them in these situations. According to the New York Times,  “In 2010, according to census data, nearly 19 percent of women age 40 to 44 had not given birth, compared with around 10 percent in 1980.” Coupled with a staggering divorce rate of nearly 50% in our country, people are growing older without anyone there to support them.  Living wills are crucial in this respect—they not only appoint someone to make decisions but, pre-approve what you want this person to decide.  

            At what point do you need to sit down and address these issues with a loved one to ensure that they have a plan in place for when they are no longer capable of making decisions?

           

           

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[1] Note: some legal scholars feel this is portion of Yauch's will may be invalid, but, as of today’s date, which is fast approaching the one year mark, no one has challenged this portion. See this Forbes article for more. 

Frank Hamilton Speaks to SALT About Protecting Your Assets & Future

Frank Hamilton, founding partner of the Hamilton Law Firm, spoke with local group SALT this past week to discuss the importance of protecting your assets and preparing for your future, while you still can.  SALT, which stands for Seniors and Lawmen Together, is a local group of senior citizens and Forsyth County Sheriffs Officers who meet to discuss topics relevant to the senior citizen community in Cumming and Forsyth County.

Over seventy-five attendees joined Mr. Hamilton in a discussion regarding the importance of planning for the future.  Many people neglect discussing and planning for what they want to take place after their death because it is an uncomfortable topic, but a few hours today can save a lot of trouble for your family tomorrow.  According to a recent survey by Rocket Law, 57% of adults do not have a will.  This is an unfortunate statistic, as Frank discussed. 

Mr. Hamilton warned the SALT members about the dangers of not having a will, stating, “I have seen client’s property totally liquidated for pennies in estate sales because the client never prepared.”  If a person dies without a will, their property is divided up through Georgia’s intestacy laws.  You may want the home you’ve shared with your spouse to remain with that spouse after you pass away, but intestacy laws could end up dividing the home between your spouse and children.  

On the other hand, Mr. Hamilton has assisted in the smooth and seamless administration of a well thought out and drafted will, covering everything from the burial arrangements the client wanted to which family member received the client’s china collection.  "There are little-to-no headaches involved when a client has taken the time to document their wishes in a will.  The will is a living and breathing document that the client can change as their needs and wishes change." 

The SALT members also learned the importance of involving an attorney in the will drafting process.  Frank explained that years of training and experience make a difference in creating a valid will (the key word being valid).  “Most people don’t realize that printing a will from Internet and filling in the blanks does not create a valid will in Georgia.  There are certain formalities that have to be met for the will to be valid.”  An online "form" will could leave your family in the same position as you would be in had you never drafted a will.  The formalities are most easily met by enlisting the help of a practicing attorney, who can make the process simple and ensure that your will is drafted in a way that best suits your needs and wishes.

The SALT group enjoyed and appreciated Frank Hamilton’s candid discussion of the dangers of not having a will, as well as his look at the process of creating and probating a will.  Check in here next week as we continue to explore the dangers of not having a will. 

Contact The Hamilton Law Firm today with any questions you have about creating a plan for your future. 

The Hamilton Law Firm Welcomes Kimberly Colmey

The Hamilton Law Firm welcomes attorney Kimberly A. Colmey 

The Hamilton Law Firm is please to announce the addition of Kimberly A. Colmey to their growing staff of attorneys.  Ms. Colmey was admitted to the Georgia State Bar in 2012, and will focus on family law.  She will also practice in the areas of civil litigation, criminal defense, and probate law.

Ms. Colmey was born and raised in Oneida, New York.  She attended St. John’s University in Queens, New York, where she earned her bachelors degree, cum laude, in Sports Management, in 2009.  Ms. Colmey was the recipient of the Michelle Doherty Award, awarded to the female with the highest Sport Management G.P.A. and was active in the Women in Leadership program and St. Vincent DePaul Society.

In 2012, Kimberly received her Juris Doctorate, magna cum laude, from Atlanta’s John Marshall Law School. Kimberly was the valedictorian of the 2012 graduating class.  While in law school, she worked in the school’s Office of Admissions and was the Managing Editor of the John Marshall Law Journal.  She also spent over a year as an intern with the Georgia Public Defender Standards Council, Appellate Division, where she worked on criminal appeals before the Georgia Court of Appeals and Supreme Court of the State of Georgia. After law school, Kimberly spent three months as an intern with the Honorable Judge William S. Duffey in the United States District Court, Northern District of Georgia. 

Frank W. Hamilton said, "In her short time with our firm, Ms. Colmey has already proven herself to be a very capable attorney.  Clients immediately appreciate her concern and understanding for their unique cases, which insures that her clients are able to make the best decisions about their future." Additionally, Frank stated, “We acknowledge and appreciate Kimberly’s academic achievements and we are excited about her future with the Hamilton Law Firm.”

Frank Hamilton is the founding partner of the Hamilton Law Firm. The Hamilton Law Firm is one of Cumming, Georgia oldest Family Law Firms.  Since 1993, they have helped clients with criminal, civil, family law, bankruptcy, juvenile court, divorce, business and other legal problems. 

Waving the Green Flag for our Social Marketing Race

The Hamilton Law Firm has waved the green flag for our social media marketing effort.  We have officially taken the plunge on Facebook, Twitter, Google+ and Linkedin, and we are inviting you to join us in the fun.

We will be posting everything from the best of the web sort of topics, blog posts on changes to the law and informational videos.  If you have a question or comment, please friend us on Facebook or tweet us at @HamiltonLawFirm.

The fun starts ....   

NOW!

The Hamilton Law Firm This is the first post on our Firm's Blog. Located in Cumming, Georgia; the Hamilton Law Firm provides family law, criminal, bankruptcy and construction legal advice to clients throughout North Georgia.