Probate

Probate Attorney in Atlanta, Georgia

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Estate Administration

In situations where a person dies without a Will, the distribution of the estate occurs under a process called “Administration”. Our office can prepare the Petition for Administration and assist with the successful distribution of the estate as required by Georgia law, including challenges to the estate distribution, heir rights, appointments of Administrators, Administrator duties, and claims by creditors and other interested third parties.

For more information visit the Administration page.

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Year’s Support

In Georgia, surviving spouses and minor children are entitled to a process called Year’s Support to set aside all or a portion of the estate for their maintenance. Among the benefits of this process is that it allows the surviving or spouse or minor child to receive from the estate even if a Will excludes them.

Our firm can help in the preparation of the Year’s Support Petition and navigating the process involved with the Petition. We can help a spouse or the guardian of minor children present their petition and we can represent another beneficiary who would like to oppose the Year’s Support Petition.

For more information visit the Year’s Support page.

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Wills, Trusts, and Estate Litigation

Should conflict between Heirs, Beneficiaries, and other interested parties emerge in your Probate, Administration, or Year’s Support matter, our firm has experience assisting clients through the process of either litigation or mediation.

We can help sort through the issues that can occur when numerous people have conflicting claims on an estate. Working with all the involved parties (or their representatives), we aim to come to a conclusion that makes the best of a bad situation with the least amount of time spent in courtrooms or mediation hearings.

For more information about how we can be the Atlanta probate attorney that assists with these issues, visit our Wills, Trusts, and Estate Litigation page.

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Breach of Fiduciary Duty

Our firm can represent a fiduciary or someone challenging a fiduciary in a lawsuit alleging breach of fiduciary duty. We can bring action on behalf of Heirs and Beneficiaries and can defend Executors, Administrators, Trustees, and Trust Administrators accused of breaching their fiduciary duty. Our firm can represent both local and out-of-state clients in Probate litigation throughout the State of Georgia.

For more information visit the Breach of Fiduciary Duty page.

How Is Probate Defined In Layman’s Terms?

Probate is a legal process that takes place after someone dies. It includes the process of proving in court that a deceased person’s Will is valid, which is a very routine matter.

It identifies and inventories the deceased person’s property and has that property appraised, which included taxes and all debt. It also includes distributing the remaining property as the will or state law if there is no will to the remaining directs.

Typically probate includes paperwork and court appearances by an attorney.

What is Your Experience in Handling Probate Matters?

Our firm has had many years of handling probate matters in the state of Georgia. We have successfully represented executors, estate administrators, heirs, beneficiaries, and creditors of estates.

What Kinds of Assistance Can an Attorney Provide to Someone Going Through the Probate Process?

Our firm can provide assistance that ranges from providing occasional advice to handling every step of the process without the client having to do a thing. We help to the extent that the client wants or needs our expertise.

We prepare paperwork for the probate court, help determine whether the Will is valid under Georgia law, and deal with any disputes amongst family members. Throughout this process, we give our clients advice and legal representation.

We make sure the Executor of the estate acts in compliance with Georgia law and distributes the estate in a timely manner. We make sure beneficiaries of the Will understand their rights and can help them decide whether object to the Will. We help estate creditors file legal claims against the estate and assert all their legal rights.

Is There More Than One Type of Probate?

n Georgia there are two types of probate: common form probate and solemn form probate. The main differences between the two are how heirs are treated. “Heirs” are those persons who would inherit the estate if there were no lawful Will; heirs may or may not be beneficiaries under the Will.

Common form probate allows the Will to be admitted to probate without giving notice to the estate’s heirs. However, it does not become binding until four years have passed from the filing. Heirs and other interested parties to the estate may file an objection at any point during that four-year period. Due to this long time period, it is fairly uncommon to see this used.

Solemn form of probate is more commonly used in Georgia. This form of probate requires notice to be immediately given to the heirs. Heirs are then given a period of time, typically fewer than 30 days after filing, to object. Once that period has passed, the judge issues a final order and the probate immediately becomes binding upon all parties. This process is a lot faster and if there is going to be a dispute, we find out before months or years have passed.

For clients without a Will, there is a completely different process used to distribute the estate. You may hear this process referred to as estate administration. This process is different than probate and is governed by a set of laws that sets who can take charge of the assets and how the estate is distributed to the heirs.

Are There Any Options Besides Going for A Full Probate in Georgia?

To minimize, and potentially avoid, probate in Georgia, a person needs to plan their estate ahead of time with that goal in mind. For example, one might jointly title their property and bank accounts with a right of survivorship, so that when they die, the ownership transfers to the other person on that title. Alternatively, you can add what is called a “payable on death” (POD) to your bank accounts, where the account automatically goes to a designated person upon their death.

Additionally, they can structure their estate so that it goes through non-probate vehicles, such as life insurance, annuities, retirement accounts, or any other account or policy that has a designated beneficiary.

Finally, a person can transfer their assets to a trust to avoid probate. This would help the person avoid probate entirely by transferring all assets into a trust which is not subject to probate and then we can distribute it to the heirs or the beneficiaries of that trust upon the death of that person.

There is a way to avoid probate that I would actively advise against: not having a Will. By not having one, you run this risk of your estate (or parts of it) not being distributed how you would like. This may cause harm to family members and disagreements among them.

What Factors Set the Stage for Probate to Occur?

Before starting probate, two things must be considered.

• First, what assets are subject to probate? These assets are likely limited to those that are in the name of the deceased and which don’t have a designated beneficiary.
• Second, we will want to see if the Will in question meets Georgia’s legal requirements.

Typically, Wills drafted by an attorney is fine, but we give extra scrutiny to those drafted online and with fill-in-the-blank forms. This is especially true if the deceased was vulnerable to undue influence or didn’t understand the contents of their estate

The first factor to consider is to look at what assets there are and see if these are assets that we need to push through probate. Remember, anything that is solely in the name of the deceased person, if there are lots of assets or if the family is not going to agree to a simple non-probate distribution.

We start creating the need to present the estate for probate. More broadly, it can be said that someone dying with assets creates the need for probate.

What Are the Top Misconceptions About the Probate Process?

The biggest misconception that people have about probate is that it is a difficult and expensive process. This does not have to be the case and for the most part, it really is not. If your attorney has drafted a good Will and your family members agree to admit that Will into probate, the filing process can be done in less than a week, often in one day. The estate can then be distributed shortly thereafter.

Working with an attorney, this process does not have to take a long time. More importantly, it does not to be contentious and expensive. These misconceptions drive a lot of people to unnecessarily avoid probate until years after the death, which can create lots of new problems. It is best if they start the probate process early, distribute the property, and put the process behind them.

Under What Circumstances Is Probate Necessary?

Probate is necessary if a person died with a Will owned property in their name alone. The goal is then to distribute that property to the people listed in the Will. Additionally, if someone dies as the sole parent of children under the age of eighteen, that Will should be probated so that the guardian nominated in it can be quickly granted conservatorship and/or custody of the children.

Does all of a Deceased Person’s Property have to go Through the Probate Process If It is initiated?

All the property from a deceased person must go through probate if it is in their name alone. Jointly titled property with a right of survivorship does not go through probate. Additionally, property with a payable on death provision or a beneficiary designation does not go through probate.

Even for small estates, the probate process is fairly straightforward enough for me to recommend that they go through the probate process.

What Are the Best Options for Avoiding Probate?

When we do estate planning with the goal of avoiding probate, we look at the client’s assets and make sure that they are either transferred to a trust, jointly titled, or payable on death to the appropriate person. Additionally, we make sure the beneficiaries are up to date on the life insurance policies, retirement accounts, and any other designated beneficiary account/policy.

We also make sure that all designated beneficiaries are adults over 18 who can manage the property. If not, we explore the possibility of leaving that property to a trust so that a trusted adult or fiduciary can manage the property until the child has reached a certain age or met other goals.

There are a lot of things that you can do, but the main goal of getting assets jointly titled or having an avenue is to directly get those assets off a person’s name upon their death.

Can Probate Ever Be a Better Option Than a Living Trust?

In some cases, probate can be a more cost-effective option than having a living trust. This is especially true if the estate has a small value, and the heirs are both few in number and over the age of 18. For example, let’s use an example of a married couple. Both spouses have no children and few assets. If both spouses in this example have Wills leaving everything to the other spouse, then a trust is an unnecessary extra step. The Will can be probated very quickly and at a relatively small expense.

In very particular scenarios such as the aforementioned, it will be faster, easier, and cheaper to have a Will drafted and then probated. However, before making that conclusion, I strongly recommend talking with an experienced estate planning attorney, just to verify that and also to make sure that they understand what they can gain or lose by having a trust.

Who Are the Main Players in A Probate Case?

There are several major players in a probate case.

1. Testator: The most important player is the person a person who has made the Will, known as the testator. Georgia law is designed to the greatest degree possible to further the desires of the testator, as stated in the Will. If there is any doubt what the testator wanted, the court will
2. Executor: The second major player is the executor nominated in the Will. However, that nominated executor may decline to serve and be replaced with a backup executor either nominated in the Will or chosen by the court with the approval of the beneficiaries. The executor is tasked with running the estate, making sure creditors are paid, and the estate distributed to the beneficiaries listed in the Will.
3. Petitioner: The third player is the petitioner. The petitioner, who is often the named executor, the person who presents the Will to the probate court and asks them to admit into probate. The petitioner will assert the validity of the Will under Georgia law and serve the heirs. Once the court has approved the Will and admitted it to probate, then the petitioner’s role ends.
4. Testator: The fourth player are the heirs of the testator. The heirs are those who would receive the estate if there was no Will. Generally, these include the spouse and children. If neither exists, then the parents would be the heirs. If there are no parents, then the siblings would be the heirs.
5. Beneficiaries: The final players are the beneficiaries of the Will. The beneficiaries are those who are listed in the Will and will receive some or all of the estate.

All of these people are players in the game. The testator drafts a Will. Upon the death of the testator, the petitioner files the Will and notifies the heirs. If the heirs don’t object, the Will is admitted into probate and the executor distributes the estate to the beneficiaries of the Will.

What Are the Common Barriers That Someone May Face During the Probate Process?

The most common barrier to a quick and painless probate process is conflict between the beneficiaries of the Will and the heirs. In my practice, this commonly occurs when heirs, likely a child or spouse, are cut out of the Will or do not receive what they expected. This also occurs when the caretaker of the deceased attempts to probate a Will in which they are the primary beneficiary.

To minimize the chances of this occurring, I recommend taking great care in the estate planning process. I would make sure that all the family members understand the estate plan and, hopefully, are on board. To increase the likelihood of this happening, I strongly recommend that clients work with an experienced estate planning attorney.

Other than that, most people will find that the barriers are fairly small. Some clients have trouble dealing with the court themselves, but if you have an attorney to assist you in the process then they will guide you through it.

A Brief Timeline of the Probate Process in Georgia

The first step in the probate process is for the petitioner, who may be the executor as well, to file the Will the local probate court along with the necessary paperwork. At that point if the heirs have not been notified, then they will be served by the local court.

At that point, the heirs may object to the will for any number of reasons, but typically on the groups that it was not the intent of the testator to have this Will. The testator may have been subject to undue influence, fraud, or forgery. If that objection is not timely made or the heirs waive that objection, then the executor nominated in the Will would be granted letters testamentary. Letters testamentary is the document that allows the executor to serve and conduct business on behalf of the estate.

The executor will then gather estate assets, set up an estate bank account, and run a notice to creditors and debtors in the newspapers for four weeks. Any creditors would then make claims, which the executor would then resolve. After all creditors have been paid, the estate would be transferred to the beneficiaries in the Will.

Typically, this whole process takes about six months. By that point most estates have settled with creditors and have begun distributing to the beneficiaries. The distribution process depends on the complexity of the estate but, at our firm, is typically done within a year. At that point, the estate can be wound down and the executor can step down.

How Long Does the Probate Process Generally Take?

If there are no objections, the whole probate process typically takes about a year. If a party does object, alleging undue influence, fraud, forgery or any of the other grounds under Georgia law to which a Will can be objected, then the process can potentially take multiple years.

Is Probate an Expensive Process for The People Involved?

For an uncontested estate, the process is relatively inexpensive. The attorney will likely do a limited amount of work, keeping costs low. However, if the estate is hotly contest requiring multiple hearings and extensive administrative costs, it can be quite expensive.

This is a major reason we work with our clients and opposing parties to settle disputes as soon as possible. It is rarely in the interest of anyone associated with an estate to have a multiyear dispute. We want everyone to feel that the outcome was fair and to preserve the memory of the deceased in the most positive way possible.

How Can an Attorney Help to Expedite the Probate Process?

We work with our clients advising them on their estate planning in such a way that we can avoid this negative impact even before it happens. Planning is the key. Planning before someone passes away makes it a lot easier at the other end. But in a scenario where we have two parties that strongly disagree; our goal at that point is to work with each side and try to make a compromise that everyone can live with.

A lot of people come in thinking they are going to go in with guns blazing and get as much of it as possible, but in real life, most estates are not so big that it can withstand years of litigation without harming all the parties. For the most part, the litigants are family members, and it takes a really hard toll on their relationships to be fighting with someone for that long.

Our goal at that point is to try and work together to see what common ground we can find and hopefully work through mediation or any other alternative process to see how we can compromise on everything.

Can Somebody Navigate Through the Probate Process Themselves?

The probate process in Georgia is not impossible to navigate on your own. For very simple estates, it may be advantageous to go on your own, if you are comfortable filing legal documents. I think our clients get a lot of advantages from talking with me, having me do the hard work, and having me explain what is happening and what their rights are.

We help people understand their legal rights while working together in a cooperative spirit. Probate in Georgia is not terribly difficult, but a lot of times people do it in a way that is harms themselves, the heirs, and beneficiaries of the estate.

What is The General Expected Outcome Once the Probate Process is over?

When it is all over, all the assets have transitioned from the name of the deceased to the names of the beneficiaries of the Will. All the debts will have been either paid in full, compromised, or settled in some way.

What Sets Your Firm Apart in Handling Estate Planning and Probate Matters?

We have many years of experience handling estate planning and probate. By doing both, we understand what kind of issues will arise.

We work with our clients to address them ahead of time before real disputes arise. We know enough probate that we can affirmatively take steps to prevent a dispute from happening months and years in advance.

This kind of experience gives us an edge in preventing disputes and winding down disputes before they get a life of their own.

Additional Information Regarding Probate in Georgia

If anyone has any doubts or questions, it is better to talk with an attorney as soon as possible. Heirs and beneficiaries need to understand exactly what the will says and how it impacts them.

It’s important to know that under Georgia law, every will has to be filed within the local probate court in the county where the deceased resided in a reasonable period of time following the death. Failure to do can lead to a ruling of contempt for the person refusing to file it.

Finally, people often do not realize that probate does not have to be a difficult process. Just have a good attorney who will give you smart advice, have everything organized, and take care of the hard stuff for you. Our firm has the experience of doing this.

Contact Us

For more information on the Probate Process, a free initial consultation is your next best step.If you have any questions about hiring an Atlanta probate attorney or would like to get started, call our office at (404) 939-7562 or contact us online for a free consultation.

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