Probate is the court-supervised process designed to help you administer your loved one’s estate and prevent any type of fraud by making sure that the proceeds of the estate go to the intended beneficiaries or legal heirs. There are two main types of probate: Intestate (where there was no Will) and Testate (where there was a Will). While the probate is occurring, your loved one’s assets are frozen while the court checks the validity of their will (or notifies legal heirs if there is no Will) and appoints the appropriate personal representative of their estate. Only after the probate court appoints a personal representative can all the financial affairs and other matters about their estate begin to be fully settled.
During probate, your loved one’s assets will be catalogued, appraised, and used to settle any outstanding debts, including any taxes. After that process, the court will then authorize the distribution of the assets according to the directives dictated by their will (or in equal portions to legal heirs if there is no Will). A final accounting of all transactions must be made available to the court before their estate is deemed closed.
To avoid unnecessary headaches during probate, it is wise to ensure that any assets have a way of being transferred to the intended new owner upon your loved ones’ death. Having a professionally written Will, drafted by an experienced Atlanta probate lawyer, is a sound way to make the probate process easier on all concerned. A Will should specify who should inherit what, and may also designate such things as who would take care of any children if both parents were to pass away. The executor of a Will makes sure that all the wishes of the decedent are properly fulfilled.
If your loved one dies without a will, the Georgia probate court will rely on the state’s intestate laws to figure out how to distribute your loved one’s holdings (financial, real estate, etc.). Leaving these decisions up to the state can be legally confusing, cause enormous family stress, and be unfair to the people that the decedent cared for.
This process does not necessarily have to be extremely difficult. By consulting with an Atlanta or Roswell experienced probate lawyer you can arrange for all the estate plans to be put in writing in detail, revised as needed, and having complexities such as dealing with multiple assets spelled out.
If you prefer to avoid the probate process entirely, our firm can create a Living Trust for you or your loved one. Living Trusts allow a person to live their life normally, but keep their assets out of probate when they pass away.
What Usually Has To Go Through the Georgia Probate Courts?
Many assets, like real estate, commonly go through the probate courts before they can be retitled to the decedent’s beneficiaries. Property that passes through the probate courts includes assets and property awarded to beneficiaries through a Will, including such things as household goods and vehicles. Additionally, any property owned by your loved one at death but not awarded or discussed in the Will may be otherwise transferred.
If your loved one dies intestate (without a Will in place), the disposition of their property during probate will be controlled by the Georgia laws of intestacy. This includes all property that the decedent held individually, or as a tenant in common, and that does not have any beneficiary designated. Even some beneficiary designated accounts go through probate.
Of course, you can prevent any of your assets from going through probate by creating a Living Trust and titling your assets into it before you pass away.
Any good probate lawyer will advise against leaving these decisions up to the state. When an estate has no written directions, it’s always legally messy, unfair to you and other relatives of the decedent, and should be avoided. Most attorneys will also tell you that probate is an unnecessary and expensive process that can be avoided using Living Trusts.
What (Usually) Does Not Have to Go through the Georgia Probate Courts?
Commonly, most property that passes using state contract law, state property title law, and state trust law does not go through the probate process.
Examples of these might include:
- Assets in a Living Trust or other Trust.
- Retirement funds where beneficiaries are already named.
- Life insurance policies with previously-named beneficiaries.
- Annuities with previously-named beneficiaries.
- Certain “Pay-on-death” accounts.
- Specific “Transfer-on-death” accounts.
- Real property held in joint tenancy with rights of survivorship.
It is always in your loved one’s best interest, as well as their family’s best interest, to leave as little as possible up to decisions made by the Georgia probate courts.
What Should My Lawyer and I Bring To the Initial Probate Hearing?
Each situation is different, as some are more legally complex than others, but usually there are certain items you must have.
The petitioner, who is usually the executor (or proposed administrator) of the decedents’ estate, should be prepared to file certain documentation with the court.
These documents might include:
- Last Will and Testament;
- Certified copy of the death certificate;
- List of names and addresses of the decedent’s heirs;
- List of known creditors.
The Will itself is probated in the Georgia probate court of the county where the decedent was domiciled (living) at death. To probate the Will, the executor should file the original signed Will and a petition to begin the probate. Your Atlanta probate lawyer will be invaluable in this process as they will complete the petition and guide you through the steps of probate.
Obtaining a consensus of legal heirs or beneficiaries, and determining if everyone is on board with the state of the estate or Will and whether they’re going to consent to have it probated or not is vital. If everyone is on the same page, there are fewer objections, delays, and costs to the estate.
I Have To Go Through the Probate Process in Georgia, How Should I Proceed?
First, don’t try to navigate the Georgia probate process alone! Probate is a serious matter, which could affect you, and probably numerous members of your family. Every member of the Atlanta and Roswell Oren Ross & Associates legal team takes extraordinary pride in treating every client as a VIP and with the empathy and experience this situation deserves. Consult with them first and be assured that the probate process goes smoothly and that the outcome is as your loved one intended.