In Georgia, unlike in many other states, probate is not “bad.” Probate in Georgia is relatively easy. But despite the relative simplicity of probate in Georgia, you might desire to avoid probate for many reasons.
Probate is the legal process of administering a recently deceased person’s estate. During probate, the probate court oversees the collection of assets, payment of taxes and debt, and the distribution of the deceased person’s assets according to a will or state intestacy law if there is no will. The probate process can be time-consuming and costly, not to mention overwhelming to family members who have to deal with the grief of losing a loved one.
Avoiding probate can be done by utilizing estate planning tools such as trusts and deeds. With the help of an experienced Atlanta probate attorney, you and your loved ones may be able to avoid the complexities involved in the probate process. At Trace Brooks Law, skilled Atlanta probate attorney Trace Brooks can help you understand your options in avoiding probate and assist you in navigating the legal processes involved. Contact us today at (404) 492-9559 to schedule a consultation.
Do Wills Have to be Probated in Georgia?
In the state of Georgia, when an individual passes away and has left a will, it is generally necessary to undertake the probate process. This judicial procedure gives legal permission to an executor or a personal representative to administer the decedent’s estate. The administration includes the collection of assets, payment of debts and taxes, and allocation of the remaining estate to the heirs as specified in the will. The entire probate process usually spans about a year and encompasses multiple steps: submitting the will to the probate court, applying to initiate probate, accumulating estate assets, resolving outstanding debts, and ultimately, disbursing the assets to the named beneficiaries.
Nevertheless, certain situations may allow for the bypassing of probate. If the deceased did not hold any assets solely in their name, or if all assets were designed to avoid probate, such as those held in joint ownership, accounts with named beneficiaries, or trusts, then probate may not be required. These types of assets can pass directly to the co-owner or beneficiary without probate intervention.
Despite the possibility of avoiding probate, it is crucial to file the will with the probate court in the county where the deceased resided, whether or not the full probate proceedings are followed. This filing is necessary to authenticate the will and to ensure that the decedent’s assets are distributed according to their wishes, even when the probate court is not involved in the distribution. Moreover, filing the will provides an official notice of death to the court, which aids in the orderly conclusion of the deceased’s legal and fiscal matters.
Options to Avoid Probate in Georgia
The reason why most estates necessitate probate is the fact that most individuals have not prepared proactively to avoid probate. To avoid probate in Georgia, you must ensure that no assets pass to your probate estate at your death. To accomplish this, you should consider a comprehensive estate plan utilizing a revocable living trust and pour-over will. Further, your assets must be properly titled and your beneficiaries properly designated.
Your assets will not be part of your probate estate if they pass elsewhere via a beneficiary designation, they pass to the surviving joint owner of an asset owned as joint tenants with rights of survivorship, or they were already owned in trust at your death.
To use a revocable living trust to avoid probate, you must fully fund the trust before your death. In other words, you must transfer almost all your assets to your revocable living trust during your lifetime (as the trustee of your trust, you would retain full control over the assets). You should not, however, transfer assets you prefer to own in joint tenancy with rights of survivorship (such as a joint checking account) and tax-deferred accounts (such as IRAs, Qualified Retirement Accounts, and annuities) to your revocable living trust. Transferring tax-deferred accounts during your life to a trust is typically a taxable event, resulting in taxable income in the year of transfer. To avoid probate with tax-deferred accounts, ensure proper beneficiary designations are in place.
Living trusts can allow you to transfer assets into the trust and remove them from your ownership. By putting assets into a living trust, you transfer ownership of the property to the trust. When the primary trustor passes away, the successor trustee takes over the management of the trust and oversees the transfer of the trust’s assets as indicated in the trust agreement.
It is important to remember that only assets included in the trust would be excluded from probate. Any assets the trustor had that were not transferred into the trust before they passed away would still be subject to probate, to be distributed according to their will or subject to intestacy law.
Owning a property with someone else can allow them to get the ownership of property once their co-owner passes away. This is called the “Right of Survivorship”. Under a Joint Tenancy with Rights of Survivorship (JTROS), the surviving owner automatically gets their co–owner’s share of ownership in the property. While this method would avoid probate, it will still be necessary for the surviving owner to provide certification that they now hold the property on their own.
In Georgia, joint tenants can legally own real estate, vehicles, bank accounts, and other assets of value. Joint tenancy can work regardless of whether the owners are married or unmarried as long as they own an equal share of the property.
Business Succession Planning
For business co-owners, it may also be beneficial to iron out the details of succession in the case of unexpected circumstances such as incapacity or death of one or more of the co-owners. When a person dies without a business succession plan in place, their share of ownership in the business is either passed on to relatives as part of their estate, taken up by other shareholders, or both.
Business assets go through probate in Georgia. Creating a business succession plan can be a helpful way to avoid possible conflict between relatives or shareholders by proactively planning out what happens to your ownership interests.
Payable-on-Death and Transfer-on-Death Designations
A Payable-on-Death designation allows an individual to assign a POD beneficiary rights to their account once they pass away. The person who created the account can still access and manage the account as they wish and the POD beneficiary will only get the rights to access the account once the primary owner passes away. When the primary owner dies, the beneficiary can file a claim directly with the bank without the need for probate.
For brokerage accounts, a person can register their stocks and bonds with a Transfer-on-Death form that allows them to name a beneficiary who will inherit the account upon their death. Like with payable-on-death designations, the beneficiary can deal directly with the brokerage company to transfer the account to their name.
Georgia only authorizes transfer-on-death designations for brokerage accounts and not for real property or vehicles. To be able to transfer real property and vehicles without the need for probate, other methods in this list may be more applicable.
Smaller estates or estates that don’t have complicated assets can avoid probate through the state’s simplified probate process. This involves filing a petition called the Petition for Order Declaring No Administration Necessary. For the petition to be approved the following requirements must be met:
- The decedent did not leave a will behind
- The estate does not have any debts or any creditors who have a claim on the estate have consented to the petition being submitted
- All the heirs who are legally entitled to inherit from the estate have consented to how the estate is going to be distributed
Along with the pertinent information to file the petition, the document must be signed by all the heirs and have their signatures notarized. If the property to be distributed includes real estate, the court would need to file a copy of the order in the county where the property is located to notify them that no administration was conducted and is not necessary. The copy would be indexed in the county’s office and certify that the property has been transferred to the heirs.
Before you make any decisions, consult an experienced Atlanta probate lawyer. An attorney can help you determine how to avoid probate by using a method that fits your specific circumstances.
At Trace Brooks Law, skilled Atlanta probate attorney Trace Brooks works diligently to ensure that clients’ goals regarding their estate’s management are respected when they pass away. Our team of legal professionals can walk you through your available options for avoiding probate and help you understand your rights and responsibilities under estate law.
Contact an Atlanta Estate Planning Attorney at Trace Brooks Law today at (404) 492-9559 to discuss your estate planning goals, including how to fund a revocable living trust and whether a probate avoidance plan is right for you.
|Options to Avoid Probate in Georgia
|Transfer assets into a living trust to remove them from your ownership, avoiding probate for trust assets. Note that assets not transferred to the trust remain subject to probate.
|Co-own property with the right of survivorship, allowing the surviving owner to inherit the deceased co-owner’s share without probate. Certification is still required.
|Business Succession Planning
|Create a plan for business co-owners to address ownership succession in case of incapacity or death, avoiding potential conflicts and probate for business assets.
|Payable-on-Death and Transfer-on-Death Designations
|Designate beneficiaries for bank accounts (POD) and brokerage accounts (TOD) to enable direct inheritance without probate upon the account owner’s death.
|For smaller estates without a will and no debts or creditor claims, the simplified probate process may be used to avoid full probate proceedings. All heirs must consent to distribution.