“’Tis impossible to be sure of anything but Death and Taxes” – Christopher Bullock (1716)
Perhaps truer words have never been spoken. I’m a Marietta Estate Planning Attorney and I find that many people who come into my office to plan their estate have a fundamental misunderstanding about what Probate is and what the Probate Process involves. This guide will assist you with some of the fundamental issues of Probate.
“Probate” is the process of transferring the assets from one who has passed away to either the heirs (also called the “beneficiaries”) as named in the Will or the heirs as determined by the law when there is no Will. Another way of looking at it is it’s the court-supervised distribution of your assets after you pass away.
When you pass away, your family may need to visit a probate court in order to claim their inheritance. This can happen if you own property (like a house, car, bank account, investment account, or other asset) in only your name.
Although having a Will is a good basic form of planning, a Will does not avoid the probate process. Instead, a Will simply allows you to inform the probate court of your wishes – your family still has to go through the probate process to make those wishes legal.
Typically, the family will gather the Will and any information they have about their loved one’s assets and debts and visit an attorney. The attorney will prepare and file a variety of documents with the Court and the Court should ultimately file an Order giving Letters Testamentary to the Executor. Letters Testamentary is the document which gives the Executor the authority to do what he or she needs to do relative to the Estate of the deceased loved one. As you can imagine, this takes time.
Generally there are two types of probate: domiciliary and ancillary. Most probates are domiciliary, but some are both domiciliary and ancillary.
This is a probate filed in the county of residence for the decedent. Most of the time, this isn’t complicated. Determine where the person lived at the time of their death and file the Will in that county’s Probate Court.
Once the domiciliary probate is filed, it may be necessary to resolve the status of assets owned by the decedent that are located in a different county or state. If so, an ancillary probate will need to be filed.
Typically, the Probate Court in the county where the property is located is notified that a probate case has been filed in another county and that the ancillary probate is necessary to give the property to the heirs.
For example, let’s say Mary owned a home here in Marietta where she resided. But she also owned a condominium unit, a vacation home if you will, in Panama City Beach, Florida. She, her children, and her grandchildren always enjoyed visiting the white, sandy beaches for some vacation time.
Mary had a Last Will and Testament leaving her Cobb County home and her vacation home in Florida to her children equally. So, her children filed a domiciliary probate in Cobb County, Georgia and then filed an ancillary probate in Panama City Beach, Florida. The domiciliary probate takes care of her assets here in Cobb County (where she resided) and the ancillary probate takes care of the condominium unit in Florida, which was the only asset located outside of Marietta.
Pro Tip: As you can see, this can become quite time-consuming and costly. Filing one probate is bad enough, but now having to file two probates? Imagine if she also owned a cabin in Tennessee and now had to do three probates !!
Probate can be a confusing and time-consuming process that many families would rather avoid. While probate is not always necessary, it is common for families to undergo probate if the deceased owned assets solely in his or her name and there is uncertainty on how to divvy up the assets.
The Georgia probate process usually involves:
The probate process can be full of obstacles. For many people, probate disputes can be emotional and hard to quickly resolve. It is helpful to have a seasoned Marietta Estate Planning Attorney to assist you in navigating the complex laws and rules of probate.
As you can see from the issues above, many families would like to avoid the probate process if at all possible. I’ve written about 3 main reasons you would to avoid probate. You can read about them by clicking here.
But, sometimes, the assets themselves avoid the probate process.
You are probably already familiar with a number of these assets. They include things like retirement accounts, 401(k)s, annuities, and life insurance policies. These avoid the probate process because you’ve named a beneficiary on the policy. A bit of caution though. You have to make sure the beneficiary designation is reviewed from time to time to make sure it incorporates with the rest of your estate plan.
For example, imagine that a husband named his wife as the beneficiary designation on his policy, but she had passed away years earlier. Had he reviewed his policy after she passed away, he may have updated it to now go to his children, as an example.
Additionally, this is an example of how a beneficiary designation will supersede whatever is written in a Last Will and Testament. To ensure all of your assets coordinate with each other and your estate planning wishes, it’s important to discuss these things with an experienced Marietta Estate Planning Attorney such as The Farrell Law Firm.
As mentioned above, the Last Will and Testament will not help your family avoid the Probate Process. Instead, it is designed to guide your family through the Probate Process. If you want to avoid the probate process, the most effective way to do so is with a Revocable Living Trust.
I’ve written about the most common types of Trusts in Georgia and you can read about them by clicking here. But, the most common type and the one used most often to avoid the probate process is the Revocable Living Trust. If you want to learn more about these or other estate planning vehicles, I’d recommend you read my book, Estate Planning for the Modern Family. You can learn about my book by clicking here.
This is something I hear all the time. Everyone assumes they have a simple estate and that the probate process shouldn’t be complicated only to be rolling over in their grave after they pass away when their family is languishing in the Probate Court.
“I’ve written my Last Will and Testament and now my family can take my Will to the Courthouse, file it, and my probate will be simple.” I’ve heard this one a number of times only to have their family sitting at my conference room table pulling their hair out after they’ve passed away.
The reason this is problematic is because if your family can’t find the original Will, the Court will presume that you wanted to revoke your Will. After all, if the Will was that important to you and you wanted the Court to probate your Will, you would have made it available for your family.
“It will be easy for my family to find my Will because it’s safely located in my safe-deposit box.” It is a good idea to make sure your Will is safe and putting it in a safe-deposit box is a great way to do that. But, even better, is to make sure it is available for your family.
If you lock it away in a safe-deposit box, but you don’t make it available to your family by having a joint holder on the account, then your family will have to petition the Court for an Order to drill open the box. I can’t tell you how many times we’ve petition the Court for an Order to drill open the box, which takes months, to open the box and find there is no Will inside.
It should be noted that this could have been a “simple” estate but problems with locating the original Will have turned this into a probate nightmare for your family.
“We’ve turned Mom’s house upside down and couldn’t find the original Will, but thank goodness she gave us a copy of the Will before she passed away. Now, it’s going to be easy.” This is problematic because the Court will presume that you wanted to revoke your Will. Perhaps you took the original Will and threw it in the fireplace, or ran it through the shredder, or maybe you cut it up with a pair of scissors. How would the Court know you didn’t do any of these things, but it has simply been misplaced since or before you passed away? There’s no real way for the Court to know, so the Court will presume you meant to revoke the Will if you don’t make the original available.
This is a presumption that can be overcome by your family, but it will take quite a bit of work and time to do it. Another example of a “simple” probate going awry.
“Thank goodness we were able to find the original Will because now everything will be so easy!!” Not so fast. From time to time (at least once a week), families will bring me the original Will of a loved one who has passed away but there is no Self-Proving Affidavit attached to it. The Self-Proving Affidavit allows your family to file the Will without having to locate the original witnesses to the Will.
Without the Self-Proving Affidavit, your family will need to track down the people who witnessed the signing of the Will and, if they are actually able to find them, pray they are willing to cooperate with the Probate Court and fill out a questionnaire (called an Interrogatory) in front of a notary, all the while your family spends time and money to probate your “simple” estate.
If you’ve taken the time and expense to create a Will, make sure you include the Self-Proving Affidavit and, again, make sure your family can find the original of both.
This is just a sampling of the issues that families have to face when things don’t go perfectly. Make sure to have your estate plan reviewed every year or two by an experienced Marietta Estate Planning Attorney and take the steps necessary to ensure your family will be able to find the originals of your estate plans.
This is a brief list of the actions your family and your Executor should take upon your death. This is not intended as an exhaustive or detailed explanation of all actions which should be taken. Rather, it is for use as a checklist to help your appointed representatives step in and handle as expeditiously as possible those things that demand immediate attention.