Decatur Probate Attorneys

What Is Probate?

When a person dies, courts want to ensure that their legacy is preserved and their last wishes are fulfilled. To achieve that goal, courts oversee the probate process, which governs how a decedent's estate is distributed among beneficiaries and claimants.

When a person passes away, the court notifies any people associated with the decedent they can find. Either the executor or anyone else with interest in the decedent's estate can then file an application for probate.

Once the probate application is filed, courts allow some time (typically a couple of weeks) for individuals to come forward and contest the probate. If nobody does so, the probate process moves forward.

After beginning probate, the court verifies the decedent's death and determines whether they possessed a will (and if they did, if the will is legitimate). Once the court verifies the legitimacy of the will, they examine it to see if the decedent appointed a personal representative. If they did not, the court will appoint a personal representative to oversee the distribution of the decedent's estate.

If a decedent dies without a will and all their potential beneficiaries agree on how to distribute the estate, it may be possible to proceed without probate. However, if anyone with interest in the estate disagrees on how to distribute it, the court will distribute the estate using statutes drafted by the state of Georgia specifically for situations where an individual passes away without drafting a will.

Probate: an Overview

Once a personal representative is appointed to the probate, it begins in earnest. The personal representative must:

• Inventory the entire estate. This means categorizing all the decedent's assets and liabilities, both tangible and intangible.
• Appraise the inventory. A financial professional, like a certified public accountant (CPA) specializing in asset valuation, typically helps the representative determine the value of every asset and liability.
• Draft a list of claims. The list of claims catalogs any money the decedent owes to individuals or entities, such as medical debt, the mortgage on their house, personal debt owed to various parties, etc.

The personal representative also acts as a sort of arbiter of the peace throughout the probate process. At all times, the representative determines what quarrels individuals involved in the will might have with the distribution of the estate and tries to ameliorate those reservations.

Once the personal representative is done inventorying the estate, appraising it, and drafting the list of claims, they deliver those documents to the court. The court then identifies any beneficiaries in the will who aren't already involved in the probate and attempts to notify them by posting notice of the probate. The court also reaches out to any claimants, like debtors, who have an interest in the estate.

At this point, individuals have the opportunity to come forward and contest the probate if they believe the personal representative isn't handling the estate properly. Common reasons people contest probates include:

• Alleging the will was forged;
• Alleging the decedent was forced or coerced to sign the will by a third party against their own best interests;
• Alleging the personal representative is knowingly failing to execute the will correctly.

However, if nobody comes forward to contest the probate, the court then moves on to distributing the estate.

Claimants, like debtors and creditors, typically receive the first "cut" of the estate. They may seize the decedent's assets to repay any liabilities owed to them.

Once all the decedent's liabilities are settled, the court then distributes the remaining assets among the beneficiaries according to the will. Depending on whether the decedent accounted for liabilities in the estate planning process, the beneficiaries may receive fewer assets than initially determined.

Now's a good time to talk about trusts. Trusts are generally exempt from the probate process, making them an incredibly powerful estate planning tool. Trusts can be used to award valuable assets, like property or a family heirloom, to a beneficiary without it going through probate. For this reason, many estate planning attorneys advise individuals to draft both a will and a living trust. The probate process can be long, stressful, and expensive, and a trust can help minimize those costs.

If a decedent has a trust, the person named in the document as the trustee ensures the terms of the trust are fulfilled.

As you can tell, probate is an arduous, complex legal process. For grieving individuals, trying to handle probate while grieving the death of a loved one is incredibly emotionally draining.

At Gibbs Tillery, our Decatur probate attorneys can help you find the best path forward in the probate process. We'll work with you to ensure the decedent's final wishes are carried out, and their legacy is preserved.

To schedule a consultation with our team or learn more about how we handle probate cases, contact us online or via phone at (404) 471-3874.