Probate

When a loved one passes away, the family is often left with the task of preparing for the decedent’s estate to be divided among his or her heirs. Depending on the kind of estate plans their loved one left in place, part or all of the estate will require probate before it can be passed down to beneficiaries. It’s always a good idea to have a probate attorney on hand who can help you and your family during such a stressful situation understand their state laws which directly apply to the situation. Here are some important aspects you need to know about probate in Georgia.

When a decedent passed away and left a will, the will has to be probated. The probate process grants authority to a family member—usually a surviving spouse or child—to gather all the decedent’s assets, pay any pending debts and taxes, and distribute what is left to any beneficiaries. It is a formal, court-supervised process that takes on average eight months to a year, if there are no issues, such as family disputes or creditor’s claims.

The state of Georgia has two types of probate proceedings, solemn form and common form. Solemn form probate is needed when the executor anticipates that there might be a dispute among heirs, since it requires a formal notice to be sent out to all heirs and also that all contests to be settled at the first court appearance. If no disputes are likely, then an executor may choose common form probate, which does not require a formal notice to heirs but remains open to challenges for four years.

Not all assets in an estate require probate, but many do. The default property ownership in Georgia is called Tenants in Common, which means that an asset with two owners on the title (like the home of a married couple) is 1/2 owned by each. If one spouse dies, the title to that home is frozen until the estate of the deceased spouse has been probated. If the home is instead owned by two people as Joint Tenants with Rights of Survivorship, when one spouse dies, the other automatically owns the home entirely. However, the home would still need to be probated when the surviving spouse dies.

Joint bank accounts do not need to be probated as long as a signer is still living, but assets owned solely by the decedent will require probate, unless a beneficiary designation has been made (IRAs and 401(k)s, for example). It is important to note, however, that beneficiary designations on some accounts, like bank accounts and brokerage accounts, do not prevent creditors or heirs from pulling those accounts into probate proceedings. 

Assets owned by a Living Trust are not subject to probate.

A common question our Estate Planning Attorneys in Atlanta answer every day is how to avoid having one’s estate probated. The best answer is to create a Living Trust during your lifetime. Because probate is costly and time-consuming, many of our clients choose to avoid it by setting up a Living Trust. Assets in a trust can be directly transferred to beneficiaries upon the Settlor’s death, and the process is kept private and away from the courts, making it possible for beneficiaries to receive their share of the inheritance in less time and with fewer costs and less hassle. 

 Every estate is different, and not every estate needs a Living Trust, but if you own a home in Georgia (even with a mortgage), a Living Trust may ultimately save your family a lot of time, money, and trouble.  It is important to consult with a professional to see if a trust is right for you, or if you would be better off with a different estate planning option.

If you are dealing with the prospect of having to take your loved one’s estate through the probate process, or you are ready to plan ahead and want to spare your family from the lengthy and laborious probate process, consult a probate attorney at Oren Ross & Associates. Each member of our team takes pride in treating every client as a VIP and pays special attention to your estate planning needs and concerns. We want to help you craft a plan to preserve your legacy or give you the confidence and knowledge you need in order to navigate the probate court with ease. Contact our local Atlanta office by calling (678) 250-4281 . We look forward to hearing from you and learning how we can help you succeed!