When is Probate Necessary?

When it comes to estate planning, probate is always a possibility that is discussed and often recommended to be avoided.

However, probate is not always necessary, and when it is necessary, it is not always a bad thing. It helps to know when probate is needed and what it involves if it is, in fact, a necessity.

What Is Probate?

Probate is another word for a formal legal process that occurs after an individual dies. The person who has died is known as the “decedent,” and the process normally involves a combination of the following:

  • Making the determination of whether a valid will exists;
  • Appointing an executor, the person who is in charge of administering the will, ensuring that assets are divided, and paying any debts the decedent may have had;
  • Handling claims by creditors;
  • Handling additional claims made by potential beneficiaries.

How the probate process goes depends on whether the probate court believes that the decedent did have a valid will and how many assets and debts the decedent had at the time of his or her death.

No Will, Probate Needed

In certain circumstances, Georgia probate law allows an heir to request that the decedent’s estate not go through the full probate process.

This procedure allows for an expedited process based on the amount of assets that exist and need to be divided. The expedited process allows for the estate to be handled within a much shorter time frame that is normally needed in a fully estate administration.

However, the heir(s) must file a written plan for how the assets of the decedent will be divided. It also must be filed by the heirs with the probate court, meaning all heirs need to agree on the asset division and consent to the petition. If any of the heirs disagree with the division, a full administration will be required.

In addition, if the decedent left any debts, the creditors must also have agreed to the plan or the full probate process will be required.

Additionally, if the decedent owned property in joint tenancy or directed that an asset go to a beneficiary, such as with life insurance policy or 401(k), outside of the probate process, then probate will not be necessary for those assets.

When Probate Is Necessary

Probate is needed if the individual died with or without a will, and the following circumstances apply:

  • The heirs do not agree on the division of property proposed in the simplified probate filing;
  • The heirs or beneficiaries listed in the will are in dispute over how assets should be divided;
  • The heirs or beneficiaries believe the individual appointed to handle the assets and debts is not properly handling the matter and ask that this person be removed;
  • The decedent left a large amount of debts with little assets;
  • Any of the creditors of the decedent are not in agreement with the simplified approach, or the creditors have filed a claim against the estate;

This list of circumstances where probate will be necessary is not an exclusive list, as other situations may arise where probate is needed.

One common circumstance occurs when an individual creates a revocable living trust with the intent of avoiding probate through this document.

However, what happens if that person does not properly fund the trust by transferring title of his or her property to the trust? Sometimes the grantor of a trust will not follow through with the required steps of transferring title of a home or other real property to the trust. Then he or she dies, only for the beneficiaries to discover that property exists that is not covered by the trust.

In these situations, probate will be needed to handle the property that was unintentionally left out of the trust.

Consult a Probate Attorney

The probate process can be complicated and lengthy. It is for this reason that an attorney is almost always recommended if a probate matter needs to be filed.

Even if the interested person is an heir who believes the matter can be handled through the simplified probate process, it does not hurt to get a second opinion or a free consultation to discuss any issues or complications that could arise.

Contact Brian M. Douglas, LLC today

If you are not sure if 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 today at 770-933-9009 or contact us online to schedule your free consultation with a Greater Atlanta area probate lawyer today.