Probate is often referred to in a negative manner as many people want to avoid probate as much as possible. However, a general lack of understanding for what probate entails is behind this negative connotation that probate receives.
What Is Probate?
Probate is a supervised legal process through the court system utilized following someone’s death. Probate gives the deceased’s surviving spouse or family members the authority to collect the assets of the deceased, pay off any remaining debts and finally transfer the assets to those who are named in the deceased’s final will or in accordance with intestate laws.
How Long Does Probate Take?
In Georgia, probate can normally be conducted in eight months to a year, unless unusual circumstances exist. If a court fight over the will exists or the deceased had some abnormal assets or many creditors claims at the time of his or her death, the process can be a little longer.
When Is Probate Not Required?
Probate is needed whenever the deceased dies with assets in his or her name alone. If assets have a beneficiary designated, are held jointly with survivorship rights or in a trust, probate is not needed.
More specifically, probate is not required in the following situations:
- If the deceased owned assets as joint tenants with survivorship rights with another person, these assets will pass to the surviving owner;
- Any assets the deceased owned which has a specific beneficiary named outside of the will, such as a retirement account or payable-on-death (POD) bank account will be transferred outside of probate;
- Life insurance proceeds or benefits from the deceased’s pension will go directly to the named beneficiary; and
- Any assets held in a trust will transfer by the terms of the trust and not probate.
Appointing The Personal Representative
One of the most important tasks the probate court must make when a will is probated is to give the authority to the executor to handle the estate. This person is designated within the actual will document and has been chosen by the deceased to handle his or her affairs.
The court gives the executor an oath and has the executor swear that he or she will act in the best interests of the estate. The court also issues “Letters Testamentary.”
If no will exists, the court will appoint an administrator who does similar tasks as an executor. Under these documents, the personal representative can:
- Accumulate and inventory the assets of the deceased;
- Have assets appraised as needed;
- Sell assets if necessary;
- Pay off all debts and taxes; and
- Distribute the property per the will instructions or intestate laws.
Preparing An Inventory
It is important that a Personal Representative keep very detailed records of what assets the deceased had at the time of their death and how they are handled. If required, the Personal Representative will need to submit an inventory to the court within the first six months of the estate, along with the estimated market value of each item.
If required by the Court, the Personal Representative will have to submit an annual accounting showing all the assets coming into the estate and all the assets being distributed out of the estate. Beneficiaries and heirs can waive the accounting, but the court can require it regardless.
Paying Debts And Taxes
After the probate case has been started, the Personal Representative must publish a notice of the proceedings in a local newspaper.
This publication must be made within 60 days and is published to know notify creditors that they have three months from the date publication ends to come forward with a claim. Creditors normally send in bills to the personal representative of the deceased’s last statements owed.
The Personal Representative also needs to file state and federal income tax returns for the deceased person for the year the deceased died. Income taxes may be needed for the estate if any of the assets create income. A federal estate tax return has to be filed only if the taxable estate is large, over $5.45 million.
Closing The Estate
Once all debts have been paid and all necessary taxes handled, the Personal Representative can distribute the assets to those listed in the will. This distribution is then followed by a Petition for Discharge with the probate court and the Personal Representative asks to be formally released of his or her duties. This discharge effectively closes the estate.
Contact Brian M. Douglas & Associates Today
If you are not sure you need an attorney, you can always come in for a consultation to discuss your situation. Please contact our office if you or someone you know has recently been appointed personal representative of a loved one’s estate and has questions about what to do next.
Call us at (770) 933-9009 to schedule your consultation with a Greater Atlanta area probate lawyer today.