Settling an estate in the Cobb County Probate Court can be a daunting task. But, you don't have to feel lost in the process. Before we get into the 6 steps to settling a probate estate in Cobb County Probate Court, let's talk about the functions of the Court and the probate process:
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What is the Probate Court?
The Probate Court in Cobb County handles a variety of functions and has exclusive jurisdiction over several things. Mainly, it oversees Guardianship appointments, issues marriage and weapons licenses, handles the probate of Wills, and the management of estates.
Where is the Cobb County Probate Court?
The Cobb County Probate Court is located at 32 Waddell St., Marietta, GA 30090. It is part of the judicial complex located just off the Marietta Square. To reach the Court by phone, you would dial (770) 528-1900.
Who is the current Probate Court Judge?
The Cobb County Probate Court has two judges as of this writing. One is Chief Judge Kelli L. Wolk and the other is the Associate Judge Tara Riddle.
Why would you need to visit the Cobb County Probate Court to settle an estate?
There are several reasons you might need to file probate in Cobb County Probate Court, but the main reason would be someone close to you passed away while they were living in Cobb County. Typically, this person might have assets that need to be distributed to his or her heirs. This process of distributing a deceased person's assets is called the Probate Process.
6 Steps to Settling a Probate Estate in Cobb County
Now that you have an idea of what the Cobb County Probate Court does and why you might need to visit the Court, let's talk about the 6 Steps to Settling a Probate Estate in Cobb County:
Find the estate planning and other documents
This might seem like an easy part, but I've had a number of families at my conference room table who say something like "I've turned mom and dad's house upside down and I can't find the Will." Having the original Will is paramount in Georgia because if you can't find the original Will, the Probate Court will assume the person wanted to revoke the Last Will and Testament.
If you can find a photocopy of the Last Will and Testament, you may be able to probate the Will by overcoming the presumption that the person wanted to revoke the Will. This is done by presenting evidence to the Probate Court and adds time and money to the process.
If you don't have or can't find the Will, the Probate Court will determine where the assets go according to Georgia law. In addition to the Last Will and Testament, you will want to locate important documents like bank statements, credit card bills, tax records, etc. This is a great first step in starting the process of settling a probate estate in Cobb County.
Appoint the Executor or Administrator
The Executor is the person who is named in the Will to be responsible for carrying out the decedent's wishes. But, just because a person is named as an Executor in a Will doesn't mean they have any power to handle a person's estate. First, they must be appointed by the Judge to handle the estate.
But, what if a person didn't have a Will? If a person didn't have a Will and they passed away in Cobb County, the Probate Court will appoint someone to settle the estate and this person is called an "Administrator." Again, the Executor or Administrator must be appointed by the Judge. Once the Judge appoints the person, the Judge will issue a document called Letters Testamentary if there was a Will and Letters of Administration if there was no Will. These Orders from the Judge is what gives the person the power to settle the estate.
Create an Inventory
This also may seem like a relatively easy part of the process, but it may become more difficult as you go along. Typical things of value include things like:
- Real Estate
- Investments
- Pension plans
- Insurance policies
- Retirement accounts
- Checking accounts
- Savings accounts
- Business interests
- Personal effects
- Valuable collectibles
The reason you want to make an inventory is two-fold. First, the Cobb County Probate Court will most likely require it. Not every probate requires an Inventory be filed, but many cases do. Second, you want to make an Inventory because some of the items listed above avoid the probate process. For example, many retirement accounts and insurance policies don't have to go through the probate process. Instead, the benefits are paid out to whomever is listed as the beneficiary on the policy, regardless of what the Will might say.
Creditors
During this part of the 6 steps to settling an estate in Cobb County Probate Court, you will need to figure out if there are any creditors out there that the decedent owed money. If so, these creditors will be paid before the assets are distributed to the beneficiaries.
How do you figure out if there is any money owed to creditors? Sometimes, the creditors will search you out. Perhaps they have figured out that you are related to the person and they start to send you the bills expecting that you will be named the Executor or Administrator.
Another way to determine whether there are creditors out there is to publish a Notice in the local paper asking creditors to come forward. This is a typical step in the process. This Notice runs for 4 weeks in the local paper and you will usually have to alert the Probate Court that this step has been completed.
But, you may also need to determine if anyone owed money to the decedent. Perhaps the decedent loaned money to someone or perhaps the decedent was involved in an automobile accident which wasn't his or her fault and a cause of action exists against the other driver. It is the Executor or Administrator's duty to pursue any money owed to the decedent in order to pay the decedent's own creditors or give to the beneficiaries.
Distribute Assets
Once the previous step has been completed, it may be time to distribute the assets to the person's heirs or the person's beneficiaries, depending on whether there was a Last Will and Testament or not. If the person had a Last Will and Testament, there is a great chance they listed where they wanted their assets to go. Typically, this will be family members and charities. Either way, it is the Executor or Administrator's duty to make sure it gets distributed to where it's supposed to go.
All the distributions will be monitored by the Probate Court in Cobb County to ensure that all debts have been paid prior to the distribution.
Close the Estate
Although there are many smaller steps within the previous 5 steps to settling a probate estate in Cobb County, the final step in the process is closing the estate. Essentially, there are two ways to close the estate, but both ways involve filing another Petition with the probate Court. The first type of Petition asks the Court to simply close the estate. The second type of Petition asks the Court to close the estate and discharge the Executor or Administrator from his or her duties. At this point, the Probate Court will review the case to ensure everything occurred properly and, if so, will enter an Order closing the estate.
At this point, you may be wondering why anyone would want to put their family through the probate process. Many families come to my office to seek a way to avoid this process for their family. Let's discuss some of the ways this can be accomplished.
How to avoid the Cobb County Probate Court:
Considering the steps your family would have to go through listed above, you may be asking yourself how you can avoid that for your family. Well, there are several ways you can keep your family from having to deal with the Probate Court and some are better than others:
- Don't own anything - This one isn't as palatable to most of my clients. Many of them have a home or some other thing of value such as an investment account. It's very impractical to not own something, but one way to ensure that your family won't have to go to the Cobb County Probate Court is to not leave anything behind for your family.
- Name a Beneficiary - The Cobb County Probate Court will most likely determine who gets your assets if there is no beneficiary designation on your asset. So, simply naming a beneficiary on your asset is probably the simplest way to avoid the Probate Court. But, not every asset type allows you to name a beneficiary. Some of the most common types of assets that allow you to name a beneficiary are:
- Life insurance policies
- Retirement plans
- Annuities
- Some investment accounts
If you can name a beneficiary, it is highly advisable that you do so. But, you want to make sure the beneficiary designations are correct. For example, you may have completed the form to name a beneficiary quite some time ago and perhaps the beneficiary is no longer alive or not someone to whom you would want to leave the asset. Be sure that your beneficiary designations are correct.
- Create and fund a Revocable Living Trust - you may have heard of a Trust but aren't quite sure how it works. But, creating and properly funding a Revocable Living Trust is a great way to help your family avoid the Cobb County Probate Court. When you create the Trust, the Trust owns your property, but you remain in charge of all the decisions as it relates to your property until your death. Then, after your death, the Successor Trustee, who is someone you have entrusted to carry out your wishes, manages your assets according to your instructions. A Trust works really well and a seasoned estate planning attorney, like the ones found at The Farrell Law Firm, can assist you in setting up the Trust properly.
- Own property jointly - Interestingly, probate can be avoided if the property you own is held jointly with the right of survivorship. There are several ways you can own property jointly and not all of them are with rights of survivorship. Georgia does not allow all of them and just because you own property jointly with another person, perhaps a spouse, will not protect it from going to the Cobb County Probate Court.
I can't tell you how many times I've heard something like "My spouse and I own the property together, so if something happens to me, it will just go to them." Then, I can't tell you how many times those same families are visiting the Cobb County Probate Court to settle the property because it wasn't titled correctly. Here are a couple of ways the property can be titled jointly:
- Joint Tenancy with Rights of Survivorship - this is the correct way to hold property in Georgia to avoid the Probate Court. Ownership of the property will simply transfer to the other title holder upon your death. But, this isn't the default in Georgia. The property needs to be titled correctly in order to have Rights of Survivorship. So, make sure you check your deed to make sure your family isn't making a trip to the Cobb County Probate Court. Tenancy by the entirety - this is a type of joint tenancy with rights of survivorship, but only for married couples in some states. Georgia is not one of these states.
- Community property - property that is obtained during a marriage in some states will pass to the other spouse, but this is only allowed in some states. Georgia is not a community property state.
- Joint Tenancy in Common - this is the default method of holding property jointly in Georgia. With a Joint Tenancy in Common property, the property goes to the person's estate when they pass away (instead of the other joint holder). Then, it will depend on whether the person had a Will or not to determine who gets the property.
We've discussed the function and purpose of the Probate Court in Cobb County, the 6 steps to settling a probate estate in Cobb County, and ways you can avoid the probate process for your family. If you'd like more information about the Cobb County Probate Court, the probate process, or how to avoid the probate process, please reach out to us and we'll be glad to assist you.
Mr. Farrell is the author of Estate Planning for the Modern Family: A Georgian's Guide to Wills, Trusts, and Powers of Attorney. You can learn about his book here and learn more about John here. Join the more than 1,500 people who subscribe to his Newsletter here. Feel free to send John a message here.
