What is Probate?
Probate is a legal process that takes place after someone dies. It involves court filings, an appearance at court, and publishing a notice in the local newspaper. The Executor is also responsible to give notice to all the heirs at law, thereby allowing any disgruntled heir to an opportunity to raise their challenge to the validity of the Will. As part of the probate process, the Executor also appraises all the assets, gathers the assets, resolves all debts and expenses, files any needed tax returns, and then under the supervision of the court, distributes the remaining assets as inheritances.
Why Do Most Families Wish to Avoid Probate?
Most families make a plan to avoid probate after their death because they want to ease the burden on their loved ones. Not only is this an emotionally trying time as they grieve your death, it can be confusing, costly and take significant time to work through the probate process. .
The timeline for probate can vary greatly. The legal minimum time is 6 months after the Executor is appointed, but it can be substantially longer depending upon the complexity of the estate and whether or not there are any disgruntled heirs. It is not uncommon for probate to take 9 to 15 months after your death. However, the process can take longer if there are any intricacies.
Georgia law sets the Executor’s fee as 5% of the estate’s total value. Additional costs are commonly another 2%. These are fees that go for court costs and filings, publication fees, appraisers, accountants and attorneys, etc.
After you die, your probate assets can’t be touched until an Executor is appointed. The Executor is within his or her legal right to not distribute any assets until 6 months after they are appointed. Due to the length and cost of this process, many people choose to form a strategy to help their family avoid the process.
What Assets Don’t Need to Go Through Probate?
Probate is unnecessary on all assets where beneficiaries are explicitly listed, such as retirement accounts, life insurance policies and annuities. The beneficiary will need to provide proof of your death and that they are listed as the beneficiary, before they will receive their portion of the designated asset. It is a good idea to check all policies to see the designated beneficiary.
If the decedent owned real property in a “joint tenancy with rights of survivorship”, that property automatically transfers to the surviving owner without entering the probate process. If your real property is owned with another person, consider having it owned as “joint tenants with rights of survivorship” to avoid probate on the death of one of the owners.
Assets held in a revocable living trust are also not involved in probate. Consider setting up a revocable living trust and transferring your assets to the trust as another way to that helps to avoid probate for surviving family members.
Does Georgia Have Any Methods for Avoiding Probate?
Most states have what can be referred to as a shortcut that allows its residents to avoid a lengthy probate process and shorten it to a more straightforward approach for families.
In Georgia, if there is no will, the estate may be eligible for a “petition for an order declaring no administration necessary.” This allows the executor to file a request with the courts to distribute the decedent’s assets while avoiding an involved and lengthy probate process.
This “shortcut” or simplified probate is only an option for those with a relatively straightforward estate. The decedent must not have left a will behind nor owe any debts. Also, all who may receive assets or property must agree on how to divide the assets mutually, or legal intervention may be necessary.
Should I Plan to Help My Family Avoid Probate? If So, How?
Each situation and family will have different circumstances, so there is no black-and-white response to this question. A qualified estate planning attorney can help you determine what is best for your objectives.
Most bank accounts can be set up as POD or “Payable on Death”. This helps you maintain control of the assets while you are living, and the POD won’t have access until death. Upon your death, the POD designee can work with the bank to access the funds from the accounts rather than endure a probate process.
Similarly, a TOD or “Transfer on Death” option exists with most stocks and bonds. The person named on the TOD can work with the broker of the stocks and bonds in question to access funds after your death and avoid probate.
A living trust (sometimes also called a “revocable trust”) is also a viable option to avoid probate. For all assets that are owned by the trust, they will not be probated. The most common assets that are put into a trust are: real estate, bank accounts, non-retirement investment accounts, and closely held business interests. The trust is also commonly listed as either the primary or contingent beneficiary on retirement accounts, life insurance policies and annuities.
A valid and enforceable trust document can be assembled with an experienced estate planning attorney to ensure that your wishes are followed and that these assets avoid probate. It will dramatically speed up how soon your family can gain access to your assets, if you so choose.
If you are relatively young, in good health, and don’t have a vast estate or a significant amount of assets, arranging your assets to avoid probate may not be necessary. Regardless of your age and your net worth, it is crucial to account for your assets and debts, and make a plan for your family regardless of how complex or straightforward your estate seems to be.
Work With a Trusted Estate Planning Attorney
There’s nothing worse than having the intention of making a plan for your family to help them avoid further stress in an already trying time, only to find out that there were loose ends or items that weren’t accounted for correctly. An experienced estate planning attorney can help ensure each asset and debt is accounted for and your wishes are straightforward. They can also ensure your estate documents can be enforced and provide peace of mind for those left behind.
Contact our office at 770-285-5493 to begin the process and learn more about how we can best assist you and your family.