Periodically Updating your Will

There are many tools available for estate planning.  One of the most important is the will.  One reason the will is so important is that it serves as a catch all for assets you may not have today and may acquire in the future.

A will allows you to express your final wishes and empowers the person or persons that you name to make sure your wishes are followed.  Not only can take care of the ones that you love from the grave but can give you peace of mind while you are living.  Just as important is the fact that you can save those that you love and leave behind from additional heartache when they have just suffered a loss.

One issue with a will is that for many of us treat it as a one and done proposition.  A will that may have served our needs five years ago can soon become dated as a result of a life change and not serve our current wishes.

Very few thing in life are static.  Your will should reflect your current life situation.  A question you should ask yourself is whether the will you prepared a year, five or ten years ago still does what you want it to.

Are the beneficiaries of your current will the same today?  Do you want your will to accomplish the same things?  Personally, my son was a minor five years ago but is now a productive adult.  It may not be necessary to have all assets go into a trust like they would have when he was a minor.

Certain life events may change your perspective and wishes from a will you created earlier.  Some of these include:

• Marriage
• Divorce
• Remarriage
• Birth of a child
• The need to create a trust for a minor or incapacitated child
• An increase or a decrease in wealth
• A desire for sentimental property to got to a certain heir

It is important that old wills are destroyed or marked invalid so the new will controls.  Litigation by interested parties can wipe out your hard work if perceived or actual beneficiaries are required to litigate.

The message here is make sure that you update your will as your life circumstances change.

Wesley Hill, JD CPA CFE

(404) 396-1716

Contract Review

A contract is an agreement between two or more parties.  As long as each party to the contract has legal capacity and there are no applicable defenses, the agreement is generally considered binding.  Each party to the contract agrees to the terms of the contract and expects to get something of value from the other party.  One party may agree to pay money while the other may agree to provide either a product or a service.

Some contracts are very simple and do not require a major  committment from either party.  I am often amazed at how easily some people sign a document that commits them to do something without reading it.  Not doing so has caused many people, myself included, to regret not being more careful.

It is not advisable to sign any contract without reading it.  By all means, ask questions about anything that you do not understand or may be difficult for you to comply with.  A quick call to an attorney for an explanation may be all that you need to get peace of mind.

However, there are some contracts that you should absolutely not sign without having an attorney review.  Not that a review by an attorney is like waving a magic wand over it, but there are terms in a contract that can work a  detriment to you and could possibly be removed through negotiation.  Your power to negotiate often expires at the time the contract is signed.

The following clause is often included in contracts and can be difficult to fight once signed.  Below is one that I have seen cause hardship on many clients.  I simply include it to illustrate how a party’s failure to understand a clause can cause a hardship.

Forum Selection Clause

A forum selection clause is often inserted into a contract to and specifies where an arising dispute should be resolved.  Many people have signed contracts and not realized that even though they live in North Carolina or Georgia but if they want to bring a legal action, they must travel to Florida, Texas or even California.  These clauses can create an unfair advantage to those who are do not fulfill their end of the agreement.

For example, assume a door to door salesperson comes to your door selling new energy efficient windows that you know will benefit you.  This seems great for you because you need new windows, the quality seems good, the price seems right and you are ready to sign on the dotted line.

You may even realize that you are dealing with an out of state company but that does not deter you.  Your assumption is that your job will be completed without any problems.  The contractor completes the work.  Later, the windows start to leak or separate.  You call the company and they are less than attentive to you.  In fact, they may no longer be doing business in your area or state.  They refer you to the contract that you signed.  It states that all legal disputes are governed by California law and will be litigated in California courts.

Imagine the cost of going to California or hiring California attorneys to represent you.  Unless the loss amounts to hundreds of thousands of dollars, you will probably just make the repairs at your own expense and go on about your business.

Forum selection clauses are very common but unless you are trained or aware of their existence, you can easily sign a contract that includes one.

This is just one example of how failing to read a contract or have it reviewed by someone with a working knowledge of contracts.

The warning here is to enter into any contract with great care.

Wesley Kent Hill

(404) 396-1716

Opening Probate

Individuals who pass away with a properly executed will make life much simpler on those left and required to carry on after an often sudden loss.  A properly prepared will and the corresponding documents, typically name an executor to handle the winding down of the deceased’s affairs and distribute property as the deceased wished.  Typically a second person will be nominated in the event the first choice is unable or unwilling to serve. It is likely papers have already been signed and the executor will have standing to go before the probate court and open the estate.  The process is simple with proper planning.

However, if the deceased did not plan, problems can ensue.  Probate will need opening.  without a named executor, an interested party can go before the court and have the probate estate opened.  If there is some debate as to who is an interested party, litigation can ensue right off he bat. This can all be avoided with proper planning that will be less costly on the front end.

It is important to know that if a named executor fails to open up the probate estate in a timely manner, an interested party may petition the court to have the estate opened so affairs can be attended to.  If the named executor cannot be located, an interested party can still move forward with filing for probate of the estate.

The point here is, taking steps while still alive is easier on your heirs.  It also allows immediate attention to your affairs and making sure your loved ones are  cared for.  It also prevents the wasting of assets when they cannot be managed for some period.  An example is a volatile stock that  you hold in your estate.

Make it easier on those that you love in the event you go before them.  See an attorney and have a plan put in place.  Those you leave behind will love you even more.

Wesley Kent Hill

1800 Peachtree Street, NW Suite 300

Atlanta, GA 30309

404 396 1617 or whillesq@gmail.com

Lump Sum Recepient

At some point in time, you are very likely to inherit a lump sum of money.  The amount may be $20,000, $200,000, or even $2,000,000.  If you already have plenty of resources or find the extra money you receive is not material to your current financial position, this post may not apply to you.

However, if the amount of money you receive is will have an impact on the future of you and your family, the information you find here may prove beneficial.  How you handle amounts you receive may positively impact your future and the future of those you love.  Money can be used as quickly as it is received.  Proper planning and decision making can leave you in a positive position.

Inheritances are generally not taxable to the recipient.  They are typically paid by the estate before you receive your share.  Basically, what you receive is yours to do with as your wish.

The inherited money may come from the loss of a parent of loved one, for from a distant relative.  Be circumspect and do not let your emotional needs drive your financial decisions during this time.

It has been my experience personally, professionally and through general observation that there is a strong urge to reward oneself, family members or even friends when you receive a large sum of money.  Some of these expenditures may include impulse purchases, large gifts to family members, vacations, etc.

Most of these purchases will bring momentarily pleasure but will not bring about lasting change or financial security.  It would be wise to consider taking amounts you receive and using them in a ways that will enhance and your long-term financial security.  This could be the one chance that you have to easily improve your financial stability.

Here are a few specific recommendations that I would like to make that you will not regret:

1. Do not make any immediate decisions about what you will do with your money as soon as your receive it.  Decisions made about your money at the time of receipt will likely be emotional and emotional decisions do not mix well with large sums of money.
2. Speak with a  business professional with some sort of professional designations.  I would suggest speaking with either a CPA or an attorney who are compensated by the hour and do not charge fees based on commissions or the amounts of money in your possession.  I would rule out financial advisors or stockbrokers from your first discussions.  There could be a time and place to include them in your planning it may not be in your best interest until you have done some long-range planning.
3. Your primary focuses should be on capital preservation and on reduction of debt.  One client that I worked with recently decided to pay off her home.  In so doing, she gave herself a monthly cash infusion that equaled the amount of her house payment.  Had she lived it up, taken a few vacations, put a down payment on a new car, given some gifts she may have lost the flexibility to make a major and lasting lifestyle change such as having a home paid for free and clear.  She now has an extra $1,500 per month of discretionary income that she may not have had if she had not made a rational decision.  Maybe you did not receive enough to pay off your home but did receive enough to pay off consumer debt such as credit card amounts or a car payment.  Think about what will benefit you over the long haul.

Receiving a lump sum can improve your life or make your financial situation more chaotic.  Please call our office if you would like help with determining how receipt of a lump sum can improve your life on a more permanent basis and not just deliver a quick fix or high.

Wesley Kent Hill   (404) 228-8103 or e-mail me at whillesq@gmail.com.

The Hidden Value of an Attorney

Calling a lawyer and getting advice is usually not the norm. People generally call an attorney when they are in “crisis mode.”  This means a problem has arisen for which legal help is the only option.  These are things like an arrest, a divorce, a DUI or a lawsuit.. This makes sense to me.

I am reminded of the 2007 movie Michael Clayton, staring George Clooney where playing an attorney he referred to his role with the firm as a “fixer.”  This can be a necessary role for your attorney at some point, but I would like to view my profession as having more to offer.

Utilizing an attorney’s experience to help on the front end of certain decisions and transactions can save you both money and headaches. The law assumes that when we sign a contract we have read it and understand it.  As a result, you can be bound by it and oblige yourself for years to come. There is reason attorneys are often referred to as counselors.  We have the experience to help you avoid some mistakes and pitfalls but only if you allow us to assist you on the front end.

Below are a few examples of when it may be appropriate to call an attorney other than the obvious, listed above.  They include:

• Estate planning
• Drafting legal documents
• Reviewing contracts or agreements before you sign
• Drafting partnership agreements
• Tax planning expecially when a major event is occurring
• Determining how to title real estate
• Handling your own divorce
• Reviewing an investment opportunity

By the way, this is not an all inclusive list.  When something goes wrong, you will call your attorney.  Getting sound advice on the front end and protecting your interests proactively rather than retroactively will save you money and headaches down the road.

Wesley Kent Hill JD CPA CFE   (404) 228-8103

Insurance: Attacking An Insurance Company’s Refusal To Pay a Valid Claim

Attorneys get just as frustrated when an insurance company denies a valid claim as the layperson.  It happens to us, just like it happens to you.  Unless the denied claim is significant, there is little that you have in legal recourse that is cost beneficial.  For example, the insurance company refuses to pay a claim of $500.  You know you are in the right.  You argue with the adjuster and they just tell you to shove it.  I know, it has happened to me on more than one occassion.  Unless you can find an attorney to take your case on a contingency basis, which is doubtful, there is little you can do.

One thing you can do is file a complaint online or in writing with the Commissioner of Insurance and Fire Safety about your issue with your insurer.  Following is the link to the Consumer Complaint Portal.http://www.oci.ga.gov/ConsumerService/complaintprocess.aspx

If your denied claim is large enough, you may want to hire an attorney and file suit against your insurer.

If you go this route, there are a number of claims that you can make against your insurer.  They include:

1. Make a request for declaratory relief.  Where the facts are overwhelming, the judge can compel the insurer to pay for damages.

2. Include in your complaint a charge of breach of contract against your insurer.  Insurance contracts are enforceable and the insurer should not unilaterally interpret the contract.  The Court system can help enforce the contract.

3. Include in your complaint a charge for breach of implied covenant of good faith by the insurance company.  Interestingly this allows for the possible recovery of punitive damages an amount deemed by the jury for the purpose of punishing the insurance company.  This is a wild card and could turn a small claim into a large win against the insurance company.

4. Make a charge of bad faith by the insurance company.

If you can succeed on any of these claims, you can get your claim paid.

Minimally, you should file a complaint with the Insurance Commission, but if you have the resources, consider filing suit in a court of law to recover your damages.  Insurers have been getting away with pushing around the insured for way too long.

 

Wesley Kent Hill

The Hill Firm, LLC

1800 Peachtree Street, NW, Suite 300

Atlanta,  Georgia 30309

(404) 228-8103

whillesq@gmail.com

 

 

 

 

Georgia Advance Directive for Health Care

One crucial aspect of having an effective estate plan is making decisions about short and long term medical care before needing it. It is possible that at some point in your life, a medical decision will need to be made and you may not be in a position to make the decision for yourself. Just as a will can allow you to make advance determinations about your final affairs such as burial and distribution of both real and personal property when you are deceased, completing Georgia’s statutory Advance Directive for Health Care allows you to select someone to make decisions in your stead as well as indicate your preferences for treatment where practicable.

The Georgia Advance Directive for Health Care has four parts. Part One allows you to appoint an agent and give them the authority to make medical decisions for you if illness of incapacitation prevent you from making those decisions for yourself. Part Two allows you to make certain decisions in advance in the case of terminal illness and your desire to be left on life support. Part Three allows you to appoint a guardian if one should ever be needed. Part Four includes signatures by yourself and witnesses. Without completion of this section, the Advance Directive for Health Care will not be binding.

O.C.G.A. 31-32-4 provides a copy of this statutory form which you may complete. Without planning for medical issues that may arise, the door is left open for disagreement between family members which may lead to litigation costs that could defeat the purpose of other parts of your estate plan.

Wesley Kent Hill
The Hill Firm, LLC
1800 Peachtree St. NW
Suite 300
Atlanta, Georgia 30309
whillesq@gmail.com