A Note From Paige
I can’t believe it’s almost Thanksgiving. If you’re traveling for the holidays and need to update your will, healthcare directive, or other estate planning documents, contact me. We can go over your documents together and update them before your trip.
The gift of an estate plan is perfect for those hard-to-shop-for loved ones, and knowing that a family member is prepared can provide peace of mind now and in the future. Contact me for more information about how you can help someone put together an estate plan this holiday season.
I think it’s crucial for everyone to have an estate plan, and this month’s topic explains why. This month, I take a look at probate administration, the process by which a person’s estate is administered and settled.
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The Final Leg of Your Estate Planning Journey
If you’ve read my previous newsletters, you know that an estate plan—your will, trust, healthcare directive, and other related documents—serves as a guide to your loved ones for what should happen to your possessions when you pass. Do you know, though, how that process plays out?
This month, I’m shifting my focus to probate administration, a process during which a person’s estate plan is employed to pay debts and distribute assets according to his or her wishes. I’ll tell you how you, your executor, and your loved ones can prepare for probate administration, and what you can expect from the process.
What is Probate?
Probate is the process that triggers the administration of an estate plan. During this process, if a person passed away (“decedent”) leaving an original Last Will and Testament (“will”), it is presented to the Probate Court for authentication and an executor (or an administrator if there is no will) is assigned to ascertain the condition of the estate.
The executor’s tasks include, but are not limited to, marshalling the estate’s assets, overseeing the payments of debts based on priority pursuant to the statute, and distributing any gifts and/or assets to beneficiaries or heirs. (Heirs are the people who would inherit pursuant to state law if someone dies without a will, or intestate
. Beneficiaries are the people named in the will or other document to inherit a portion of the estate.) Some assets, such as a 401k account and life insurance, have specialized forms or processes for naming beneficiaries and pass outside the probate process.
When do you have to go through Probate Administration?
Below are some common types of probate proceedings in the State of Georgia:
- Solemn Form Probate: This procedure submits the decedent’s will to the Court and provides notice to all heirs so they have the chance to file a will contest. This procedure is immediately binding upon entry of the final order.
- Common Form Probate: In this option, the will is submitted for proof of proper execution, but the petitioner doesn’t have to provide notice to the heirs. The procedure does not become binding until four years after the Executor is assigned. Further, this procedure does not protect the Executor from liability for any acts above collecting and preserving assets.
- Probate of Will in Solemn Form/Letters of Administration with Will Annexed: If the Executor named in the will is either unable or unwilling to serve, this procedure should be used to appoint an Administrator. The nominated Executor must sign a declination, or testimony must be presented to show that he or she is unable to serve.
- Will Filed Not for Probate: If the decedent passed without any probatable assets, probate may not be necessary. It’s highly recommended to consult with an attorney who specializes in this area who can review the types of assets and explain whether any of them should pass through probate. Even if there is not a need for probate, I still recommend filing the decedent’s will with the Probate Court.
- Petition for Letters of Administration: If an individual dies without a will, his/her estate may still go through the probate process if there are probatable assets. Without an estate plan to guide the court, the estate will be administered pursuant to Georgia law. The court will assign an Administrator to oversee the payment of debts and distribution of the estate.
Regardless of the proceeding, the decedent’s heirs must be determined according to the state’s inheritance laws. Resources exist
to help determine who the decedent’s heirs are—a process that can often be complicated. Thus, it is often best to consult with an attorney who specializes in this area.
What should I expect?
Although the state of Georgia doesn’t require a petitioner to have an attorney, it’s advised to discuss the process and your options with an experienced attorney who regularly handles probate and estate administration. Georgia’s Probate Court has an extensive list of forms, and an attorney can help you determine which ones you’ll need to file as well as explain the timing of things and the requisite steps to follow.
How can I prepare?
For those individuals with wills, one of the best ways to prepare for the Probate process is to discuss the process with an experienced attorney to make sure your plan is properly updated. If you do not wish for your estate to go through probate, an estate planning attorney can provide you options as well as provide insight into how the process works, how long it takes, and what you (if you’ve agreed to be someone’s Executor) or your loved ones can anticipate.
Discussing the process with trusted loved ones can also ensure that the process will flow more smoothly when a person passes away and it’s time to go through probate administration. If you can help your Executor understand his or her responsibilities and give him or her a clear understanding of your wishes, that can facilitate the process as well. Finally, making sure a trusted friend or family member knows where your estate plan is and who your attorney is can prevent delays in beginning the probate process.
The state of Georgia offers several proceedings for those with and without wills to distribute a decedent’s assets to heirs and to pay off any outstanding debts. Navigating probate administration can be involved and challenging, but an experienced attorney can help you submit the correct petition(s), run notices, locate heirs, and step you through the process.
I assist clients in every stage of the estate planning process, from drafting a will to probate and estate administration. Please contact me
to request additional information.