Decatur Probate Attorneys
Working with You to Navigate Probate
Probate is often one of the most overlooked aspects of the estate planning process—which can be a costly mistake. Probate, or the act of distributing a person's estate after they pass away, can play a vital roll in how an individual's assets and liabilities are handled once they're gone.
Understanding the probate process can give you the tools to either take the right precautions in your own estate planning affairs, or navigate a probate case you're involved in with confidence.
At Gibbs Tillery, our Decatur probate lawyers understanding Georgia estate planning inside and out.
Common Legal Terms Associated with Probate
Before we begin, it's important to cover some of the common legal terms associated with the probate process. Understanding these terms can help you navigate probate more fluidly. Terms you should know include:
- Estate. An estate includes all of a person's assets and liabilities, both tangible and intangible. Everything from real estate to vehicles to debt to silverware falls under the umbrella of the estate.
- Decedent. A decedent is a person who has recently passed away.
- Beneficiary. A beneficiary is someone a decedent awards assets to in their will or trust.
- Claimant. A claimant is an individual or entity that files a claim on a decedent's estate, alleging the decedent owes them money. Claimants often come forth in probate to recoup on debts the decedent owed.
- Last will and testament. A last will and testament plays a vital role in the estate planning process, allowing an individual to specify how they wish to allocate assets among beneficiaries once they pass away.
- Trust. A trust is another way of distributing assets among beneficiaries, but it's different than a will. A trust has less legal power than a will (for example, a will can be used to establish Power of Attorney, while a trust cannot), but trusts have a unique interaction with probate. We'll cover that later.
- Executor/Personal Representative (PR). The executor is the person responsible for helping the court accurately distribute a decedent's estate during probate. The executor ensures that the terms of a decedent's will or trusts are carried out to the letter and their final wishes are fulfilled. Executors are appointed by decedents, often in their will. In Georgia, executors are frequently referred to as personal representatives.
- Administrator. If a decedent fails to appoint an executor, the court appoints an administrator to fill the executor's role. The administrator is usually someone close to the deceased, such as their immediate heir. Administrators are also referred to as personal representatives once they're appointed, so that's the term we'll use for the rest of this page.
- Trustee. Trustees fill the same role as executors, but for trusts.
Now that we have a basis for understanding common terms associated with the probate process, let's cover how probate actually works in Georgia.
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.
Unmatched Commitment to Our Clients' Best Interests
You Get Trial-Tested Advocacy in Your Corner
Our Firm Offers Client-Friendly Fee Arrangements
We Take an Individualized Approach to Every Case