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Probate is an especially difficult area of law because it requires people who have lost a loved one to answer important questions about what to do with the deceased’s property and assets, all while grieving. At Smith & Little, P.C., we seek to treat all clients working through the details of probate with thoughtfulness and care because we know what a challenge probate can be.
If you have questions, read this page and then give us a call at (678) 272-8305 or contact us online to find out what answers to your probate questions we can provide.
If the deceased has no named beneficiaries at the time of their death, or if the deceased has named their estate as their beneficiary, then the individual’s assets must go through probate.
When Is Probate Not Necessary in Georgia?
Georgia state law accounts for several instances when a deceased person’s assets do not need to go through probate. These include:
- The deceased included their assets in a revocable living trust
- The deceased did not leave a will, but the heirs and creditors agree on how the assets and debts should be apportioned and handled
- If the deceased owned property with another person, then sole ownership of the property is transferred to the surviving owner
A revocable living trust, as mentioned in the first bullet point, allows individuals to formally name a beneficiary of their assets before they die, thus avoiding probate. Although a revocable living trust might appear like a will, it is different because it concerns assets, while wills do not.
It is important to consider that revocable trusts do not always mean probate is not necessary. Revocable trusts require individuals to re-title their assets in the name of the trust. If an individual is to pass away and they have not re-titled one asset in the name of the trust, then that asset must go through probate. Additionally, surviving heirs of the trust could file legal disputes with some aspect of the trust and how it was handled that could ultimately lead to probate.
Smith & Little, P.C. can help you with any aspect of probate in McDonough. Contact us online or call us today at (678) 272-8305 to discuss your case.
The Probate Process in Georgia
Georgia’s probate laws feature specifics that are important to consider. Below is a general timeline of what the probate process looks like in Georgia:
- Initially, parties file a petition with a court to go through the probate process
- If the deceased has listed someone in their will as an executor, then the court formally recognizes them as the estate’s executor; if, however, the deceased has not listed anyone, the court will select a personal representative, who will perform the same job as the executor (in the steps that follow, we will jointly refer to the personal representative and the executor as “the executor” for clarity)
- The court delivers Letters of Testamentary to the executor, which are the legal “go-ahead” for them to distribute the deceased’s assets and otherwise settle their estate
- The executor works to appraise and perform an inventory of the deceased’s assets
- The executor files and pays the deceased’s taxes, as well as any debts they might have left
- The executor files a death certificate with the state of Georgia
- When the executor has settled all the deceased’s debts, they apportion the remaining assets, and then formally request that the court end the probate
Although the process appears straightforward, it is common for disputes to alter the course of probate. A potential heir might dispute the way an executor is handling the estate, for instance, and argue that their appraisal of the estate was inaccurate. To give another example, before probate even starts, it is possible a surviving family member of the deceased could dispute the validity of their will, arguing that the deceased was not of a sound mind when they created and signed the document.
While disputes can vary widely, the process of disputing and settling a disagreement in court follows the general structure below:
To formally raise a dispute, an individual must file a pleading, which is an allegation that some aspect of probate has been handled wrongly.
At this point, the party who has filed a pleading will work to gather information that demonstrates why their allegation is true. With the help of a probate attorney, like those at Smith & Little, P.C., a party can gather essential information themselves or they can seek it from the party whom they have filed the pleading against.
Sometimes a party facing an allegation will be reluctant or outright refuse to offer information or documents to a party who has filed a probate pleading. In these cases, an attorney can file motions with the probate court that ask a judge to compel the other party to produce the requested information or documentation. In other cases, a party might file a motion to have a judge make a decision about the case as soon as possible because the evidence is so abundant and clear that the there is no reason to continue further.
This is the culminating hearing of the probate dispute. At trial, both parties will defend their positions and present the evidence they gathered to support their side. Once a probate judge hears the case, they will make a formal decision. Pending any appeals that argue something additional had gone amiss in the case, the judge’s decision will settle the case.
What we have outlined is a high-level view of a process that often features particularities and variables that are unique to the parties involved. Having a knowledgeable attorney by your side to help you file or fight a dispute can be crucial. The probate attorneys at Smith & Little, P.C. have years of experience helping individuals and families settle their specific disputes and reach ideal ends to their cases.
If you have concerns about probate, contact us online or call (678) 272-8305 to set up a consultation to find out how we can help you.
Establishing both a trust and a will can help a person’s loved ones navigate some of the complicated practicalities of what do in the unfortunate event of their death. Generally, trusts dictate what will be done with an individual or couple’s assets after they have passed away. A will, on the other hand, concerns matters such as guardianship for the deceased’s child and the last wishes of the deceased.
Having a will and a trust can make life easier for family and loved ones. Smith & Little, P.C.’s probate attorneys in McDonough can help you craft your will and trust so that your affairs are handled exactly as you would like.
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