Estate Planning FAQs (Part 2): Trusts, powers of attorney, and protecting your kids

This post picks up where Part 1 left off. We’re covering what a trust does (and doesn’t do), powers of attorney, how to make sure your kids are cared for, and how the estate planning process works. If you take one thing from this post, it should be that most Georgia families need both a will and a trust, working together.

In Part 1, we mostly focused on wills, probate, and when to start your estate plan. In Part 2, we’re digging into the questions I get most about trusts, powers of attorney, deciding who will raise your kids, and other practical logistics about how the process works in general. 

Frequently asked questions about Georgia trusts

“What is a trust, and what does it do?”

Most people have heard of trusts, but they’re not sure what a trust is or what it does. So let’s start with the definition: a trust is a legal arrangement that holds your assets and passes them to the people you choose, outside the probate court.

If you remember from Part 1, a will has to go through probate. With a trust, your assets pass directly to your loved ones immediately, privately, and without a court process.

For most families, the biggest advantages of a trust include avoiding probate, keeping your estate private, controlling how and when your children inherit, and covering incapacity while you’re still alive.

The problem you’re worried about	How a trust solves it
“I don’t want my family stuck in probate court.”	A funded revocable trust avoids probate, so assets pass directly to your family with no court process.
“I don’t want my finances to become public record.”	Probate is public in Georgia, while trust distributions stay private.
“My kids are young. I don’t want them getting everything at 18.”	A trust controls when and how children inherit. You can stage distributions by age or intended use.
“What if I’m incapacitated but not dead?”	A will only takes effect at death; a trust covers incapacity through a successor trustee.
“I own property in more than one state.”	A trust avoids a separate (ancillary) probate in each state where you hold real estate.
“I have a child with special needs.”	A special needs trust provides for them without jeopardizing government benefit eligibility.
“I own a small business and don’t know what happens to it when I’m gone.”	A trust can hold and transfer business interests with clear succession terms.
“I want to protect my kids’ inheritance from creditors or a future divorce.”	A trust can shield your beneficiaries’ inheritance.

Wills and trusts are not an either/or choice; they’re designed to work together. A trust can handle the distribution of your assets and keep your family out of court, while a will names a guardian for your minor children. A “pour-over” will also acts as a safety net to catch anything you didn’t get into the trust. Each one covers the gaps that the other would leave open on its own.

“Can a trust protect my assets from creditors?”

This is one of the most common trust questions I get. In Georgia, a standard revocable living trust (the kind most of my clients use) does not shield your assets from your creditors while you’re alive. If you can reach into the trust and use the money, so can a creditor. That’s how Georgia law treats this setup.

What a trust can do is provide creditor protection for your beneficiaries. That means your kids’ inheritance can be shielded from their future creditors, divorces, or lawsuits, even though the same trust can’t shield those assets for you.

An irrevocable trust generally does protect you from creditors, but it comes with very serious drawbacks. To get that level of protection, you essentially give away the assets in the irrevocable trust. You can’t use them, benefit from them, or control them. 

“Can I change my trust after I set it up?”

Many of my clients are afraid that signing a trust will “lock in” every decision they make, forever. But if you have a revocable living trust, you can change the terms whenever you like, as long as you’re deemed mentally competent. You can change beneficiaries, change trustees, change the terms, or even replace the whole thing and start over again. (Not necessarily recommended, but possible.)

If you have an irrevocable trust, your options are very limited. Some things can be changed, but oftentimes the person with the power to make a change isn’t you, but a “trust protector” you appointed for that purpose. With an irrevocable trust, the whole point is to outsource control, so this is by design.

Which leads to a question I hear a lot from people who’ve heard they “need” an irrevocable trust…

“Doesn’t my trust become irrevocable when I die?”

Yes, every trust becomes irrevocable after the grantor’s death. Many people come to me convinced they need an irrevocable trust, because they’ve heard it’s “stronger” or that a revocable trust can be changed too easily. 

But only the person who created the revocable trust can change it. Once they die, it’s set in stone. At that time, those creditor protections switch on for your beneficiaries. 

In other words, a revocable living trust gives you the best of both worlds: flexibility to change things while you’re alive, and an ironclad plan when your family needs it. In the vast majority of cases, that’s a better fit than locking everything down and giving up control of your assets while you’re still alive.

Grab our free guide on Revocable vs. Irrevocable Trusts

Durable powers of attorney

“What is a durable power of attorney?”

Clients often get confused about the difference between a “power of attorney” and a “durable power of attorney,” but they’re effectively the same thing. The POA we prepare is durable, meaning it stays in effect if you become incapacitated (which is the whole point), and it covers financial and legal matters. 

In essence, your POA names who makes decisions for you if you’re unable to do so while you’re still alive. You need this as a separate document because your will doesn’t take effect until your death, so it’s important to have a plan in place while you’re still alive.

“Who is my POA agent?”

Your agent is the person you choose, usually a spouse or adult child, who will step in to sign legal documents and make financial or legal decisions if you can’t. You get to pick them, and you should also name a backup in case your first choice can’t serve.

“What’s the difference between a financial and medical power of attorney?”

Your financial power of attorney (the durable one we talked about above) lets someone handle your money and legal affairs.

The medical side handles healthcare decisions. In Georgia, that’s usually not called a “medical power of attorney”; it’s an advance directive, a document that names your healthcare agent and records your wishes about the kind of care you’d want. 

The important takeaway here is that the person handling your finances doesn’t automatically get to make your medical decisions, and vice versa, though many of my clients name the same trusted person for both. Just like your financial POA, these documents only matter while you’re alive and unable to act. Your trust and your will take over if you pass away.

Naming a guardian and protecting your kids

“How do I decide who raises my kids if something happens to me?”

For parents of minor children, this is the biggest reason to make an estate plan today, not “later.”

You must name a legal guardian (and standby guardian) in your will, or a court will appoint them for you. This is very important to understand, because wills need to pass through several qualifications before they’re considered legal documents in Georgia. Simply writing someone’s name down and signing that piece of paper doesn’t grant them any legal authority on its own. The court has to recognize the will as legitimate.

Also, even with a properly executed will, a court still has to legally appoint the guardian you selected. That’s why I always recommend that parents name a standby guardian who can step in during the interim. Georgia has a specific statute and form for naming a standby guardian; this is someone who can step in immediately to care for your children while your will goes through probate. 

One caution when choosing a guardian: Resist the urge to pick a long line of backup guardians. It’s a good idea to name a first, second, and third choice in your will, just in case. But the standby guardian process centers on the primary designation, and piling on alternates can create uncertainty about whether your selections will work the way you intended. 

“Is it okay to name a guardian who isn’t a family member?” 

Absolutely. Just know that your family may have strong feelings about this, so you may want to discuss it with them when you’re making your selections (though this is up to you and depends on your situation). 

If this choice feels overwhelming, you’re not alone. Choosing the best guardian for your child is one of the most important decisions any parent can make, and I’ve talked hundreds of families through it. 

“What’s the best way to leave money to my minor children?”

Most parents don’t phrase it exactly this way, but nearly everyone wants to ask about it: How, and at what age, should my kids receive their inheritance?

This is one of the biggest benefits of a trust. A trust lets you control the timing and the terms of how your children inherit, so everything doesn’t simply land in your teenager’s lap the day they turn 18. (As a rule, 18-year-olds are not famous for their sound financial judgment.)

Many of my clients opt for a staged distribution, where their children receive a portion of the inheritance at age 25 and a portion at 30, or something similar. You can also build in flexibility for the trustee to provide funds earlier for the right reasons, like buying a first home or starting a business.

How the estate planning process works

“How long does the estate planning process take?”

The exact timeline depends partly on your attorney and partly on you.

Speaking for my own practice: From the moment when we officially kick off with the Estate Design meeting, I’ll have your documents drafted and ready for you to review within three weeks. (That’s the outer limit; it’s usually faster, but sometimes life happens.)

After that, the pace is mostly up to you. Clients who review their drafts promptly can wrap up the whole process in about four to six weeks. Most plans finish in around three months, because it can take people a while to sit down with the documents and look them over before signing.

The process can seem complex from the outside, but it’s really just three steps:

1. Intake: You complete a simple form that gives me critical information about your family and your assets.
2. Design Meeting: A guided 50-minute conversation where we make decisions about what should happen with your assets and your family.
3. Signing: You leave with a complete plan and a one-page, plain-language map of how everything works, so the whole thing is easy for your family to follow when the time comes.

You don’t have to walk in with your answers ready to go. So many people worry about making the “wrong” decision on their guardian or trustee, or how to divide their assets. That’s where the Design Meeting helps the most: I’ll ask you some guided questions, and if you aren’t sure about your answer, I’ll suggest one based on your situation and what tends to work well. 

You can take my suggestion, or use it as a starting point to figure out what you’d change. People tend to tie themselves in knots ahead of time, because they don’t know what they’re supposed to be thinking about yet. But I always try to alleviate that stress beforehand as much as possible, because thinking ahead is my job. 

“Where should I keep my documents once they’re signed?”

You do need to keep the originals of certain documents; a stamped PDF or a copy isn’t always enough. But you don’t need to keep them anywhere fancy. A small fireproof box, or wherever you keep your other important papers, is fine. Just make sure you keep your estate plan somewhere your family would know to look.

The two documents where you need the original:

• Your will: If a will has to be probated, the court generally needs the original. If it’s missing, Georgia law can presume you destroyed and revoked it, which turns into a real headache for your family. Keep the original safe.
• Your power of attorney: A copy works for most purposes, but not for real estate. To use a POA to sell property, the original has to be filed with the court records.

For a trust, a copy is as good as the original, and any deed is e-filed anyway. The “original” is already a stamped PDF.

One will-related PSA: Depositing your original will with the probate court for safekeeping is not something I recommend. It’s technically possible, but the court won’t do anything with it automatically, because they’re not watching the obituaries. If you move, your will can get stuck sitting in a county courthouse nobody thinks to check. So storing your will with the court tends to create the “where is it?” problem you were probably trying to avoid in the first place.

What I wish more people knew about estate planning

If there’s a single thing I wish more people knew before they got started, it’s this: it’s not as bad as you’re imagining.

Just last week, a client told me it was “the easiest meeting I’ve had all day,” and I consistently hear some version of, “That wasn’t as bad as I thought.” As with most tasks we put off, the dread is so much bigger than the experience warrants.

That’s why I built my Estate Design process the way I did. I take the scary, ambiguous, “what happens to my family” questions and turn them into a series of clear decisions you can feel good about making. We work through this process in plain language (not legalese), in less than an hour. 

Ready to ditch the dread and get your plan started?  Book a strategy session and let’s build something your family can rely on.