The probate process is a structured and regulated means of closing a loved one’s estate. While Georgia probate law and the Probate Court can help guide the distribution of assets and property, this process can also be burdensome for family members who are already dealing with grief and anxiety.
Probate is a legal process by which a person’s estate is administered. The Probate Court validates a person’s will and executes the instructions within that will. The individual administering the estate gathers and files the necessary documents, notifies heirs and creditors, marshals and distributes assets, files a final tax return, and then officially closes the estate. The whole process can take several months or longer, depending on the complexity of the estate.
Avoiding the Probate Process
There are a couple of different reasons why someone might want to avoid – or have their beneficiaries avoid – the probate process. First, the probate process can be time-consuming. In Georgia, probate typically takes a minimum of six months. For complex estates, the process can last several years. That’s a long time for family members who are grieving, stressed, and potentially dealing with estate creditors. Also, the longer the process takes, the more likely that assets or possessions may be misplaced. Second, probate cases are public. When an administrator or executor files the will, it becomes part of the public record. Anyone can look up the contents of that will, which could inadvertently bring family or financial issues to light. Third, probate can be expensive. Again, depending on the complexity of the case, there could be multiple court appearances and extensive paperwork requirements. The family members may have to hire an attorney to facilitate the case. The legal fees can add up quickly.
Common Probate Issues
In addition to problems related to timelines, privacy, and cost, there are other conflicts that commonly arise during the probate process. Here are some of the issues that are typically brought to the Probate Court:
- Arguments Between Family Members or Other Beneficiaries
- Arguments About the Decedent’s (The Person Who Created the Will) Intentions
- Estate Assets Located in Multiple States or Countries
- Disputes Over the Value of Estate Assets
- Missing Estate Assets
- Challenges to the Will
- Multiple Copies/Versions of the Will
- Executor Not Accepting Role
- Complaints that the Executor Isn’t Performing their Duties
Can a Will Help with Probate?
Having a Last Will and Testament won’t help you to avoid the probate process, especially if the will contains instructions about the transfer of assets and property. But a will can help you navigate the probate process a little easier. If the decedent organizes their estate and leaves clear instructions with the estate executor, the probate process will typically be faster. The executor will know where the important documents are and how to access them. He or she will also have an inventory of assets and know how the decedent wished for them to be distributed. The probate process will be much more straightforward.
Can a Trust Help with Probate?
A trust operates differently than a will, in that a trust does not have to go through the probate process. Once a person creates a trust and puts assets into it, they can then easily direct those assets to the beneficiaries of the trust. For example, with a revocable living trust, a person transfers assets or property into the trust during their lifetime; they also select a trustee to manage that trust and name the beneficiaries of the trust. When the person who created the trust dies, the Probate Court does not need to be involved. Any property or assets remaining in the trust go to the named beneficiaries. There are many different types of trusts, including trusts to care for minor children and trusts for emergencies or incapacity.
Have Additional Questions? Contact the Estate Planning Team at Brian M. Douglas & Associates
An estate plan can help protect your family and your hard-earned assets. A carefully drafted plan can also help you avoid the probate process and ensure that your loved ones are receiving your assets and property based on your wishes and desired timeline. If you have additional questions about the probate process, please reach out to us at (770) 933-9009 or via our online form. One of our experienced estate planning and probate attorneys would be happy to help.