In short, estate law is the set of laws that govern the way an individual’s estate is managed, both during their life, and after they become incapcitated or deceased. It is important to understand the basics of estate law in order to ensure that your estate is managed according to your wishes upon your passing.
An individual’s estate is essentially the total of all of their assets, property (real or personal), and intangible assets. Additionally, an individual’s estate also includes any debts or taxes.
In order to better understand estate law, you must first be aware of what the terms will, trust, and probate mean. The following is a quick breakdown of these important estate law terms:
- Wills: A will, commonly referred to as a “last will and testament,” is an estate planning document that allows an individual designate the way in which they want their property to be distributed upon their death. Within a will the creator of the will, also known as the testator, will list the person(s) they choose to distribute their estate to, known as the beneficiaries.
- Also within the will, the testator may designate an individual of their choosing to serve as the executor/executrix (known as a personal representative or “PR” in Georgia) of their estate. The executor will then ensure that the testator’s property is distributed in accordance with the will and the testator’s wishes upon their death.
- Trusts: A trust is essentially an estate planning tool that directs one or more individuals, known as trustee(s), to hold the trust creator’s property for the benefit of some named individual(s), known as a beneficiary.
- For example, a parent may create a bank trust account for their child through a banking institution, and name a trusted lawyer or accountant to handle the trust account.
- In such a scenario, the parent would be the trustor, the manager of the account would be the trustee, and the child would be the beneficiary. Trusts are useful estate planning tools, especially when used to avoid probate.
- Probate: In short, probate is the legal process in which either a will is determined valid in court, or an individual’s estate is settled in accordance to the intestacy laws of the state they resided in when they died.
- If there is a will, then the deceased individual’s estate will be distributed in accordance to their will, after their will is determined valid in court.
- If there is no will, that individual will be deemed to have died intestate, meaning they died without having a will. Thus, their estate will then be distributed according to the probate code of the state in which they died.
As can be seen, estate laws differ according to the state you reside in. Therefore, it is important to understand Georgia estate laws, in order to ensure that your estate is properly managed. Additionally, it is important to understand Georgia’s probate process.
By understanding Georgia’s probate laws, you will be able to determine whether you need to create a will in order to ensure that your estate is distributed in accordance to your wishes, or allow your estate to be distributed through intestate succession.
Although Georgia probate laws generally follow the Uniform Probate Code (“UPC”), it does differ in some unique ways. As mentioned above, Georgia does in fact have its own separate probate code.
In Georgia, if a person dies with a will and names a personal representative, that person will be in charge of settling the deceased person’s estate. If the person died without a will, the probate court will appoint an administrator, typically the surviving spouse, to settle the estate.
It is important to note that Georgia’s probate process is unique, because if all of the heirs are in agreement, they can request that the decedent’s estate not go through probate. In order to take advantage of this unique law, all of the heirs must be in agreement as to how the estate’s assets should be divided. Additionally, a petition must be filed by one of the heirs asking the court to order that probate administration is not necessary.
Another way of avoiding probate in Georgia is if the value of the estates assets are less than $10,000. If the total value of assets in the estate is less than $10,000 the estate will be considered a “small estate” in Georgia. This means that the heirs of the estate may then file a small estate affidavit with the court, and petition the court to order that the administration of the estate is unnecessary.
Typically, Georgia’s probate process is consistent with the probate process in other states. This means that if there is a will, the probate process will generally consist of the following:
- The executor(s) named in the deceased person’s last will and testament will have the decedent’s last will and testament admitted to the probate court to be declared either valid or invalid;
- If declared valid, the deceased person’s assets and debts will be inventoried and identified;
- After all of the assets and debts of the estate are identified, the debts will be paid from the estate by the executor(s) named in the will; and
- Finally, the remaining assets will be distributed to the beneficiaries named in the will.
If the deceased person died without leaving a will, and the estate is not a small estate or the heirs cannot agree in how the estate is to be divided, the probate process in Georgia will generally consist of the following:
- First the court will appoint an administrator, usually the surviving spouse or closest kin of the deceased;
- Next, the administrator of the estate will determine the heirs of the estate;
- After determining the heirs, the administrator will publish a notice to creditors that the estate is going to be administered;
- Next, the administrator of the estate will be granted letters of administration by the court, and gather all of the assets of the estate to pay off any debts or taxes; and
- Finally, the remaining assets will be distributed proportionally to the determined heirs.
In short, no. As mentioned above there are many ways to avoid the probate process in Georgia. For example, if the estate’s total assets are valued at less than $10,000 the estate will be considered a small estate in Georgia, and the probate process will not be necessary. Importantly, life insurance policies and retirement accounts are not considered in calculating the total value of the estate’s assets.
Another way of avoiding probate is if all the heirs are in agreement as to how the estate is to be divided amongst them. Finally, probate may also be avoided through the creation of a will and trusts. It is important to speak with a lawyer when planning your estate to ensure that you are able to avoid the probate process and save your loved ones money down the road.
As can be seen, Georgia’s laws on wills, trusts, and probate are unique. This means that it is important to have a local attorney to explain how Georgia’s laws might affect your estate. A local attorney who is familiar with Georgia’s laws and the local probate courts can make the entire probate process go a lot smoother. Additionally, they will be able to help ensure that your estate is properly planned through the creation of wills and trusts in order to ensure that your estate is distributed in accordance to your wishes.
Further, an estate planning attorney can also help you draft a will that includes a “no-contest” provision in order to ensure that your heirs do not fight over the assets in your estate. With a no-contest clause, if any person who stands to benefit from the will contests the will, they may lose their share under the will.
If you are in a situation where you are in the process of getting your estate in order, or if you are an heir to an estate seeking assistance regarding the probate process, it is important to consult with a well qualified and knowledgeable wills, trusts, and estates lawyer in Georgia.
An experienced estate planning attorney will be able to help you avoid the probate process in Georgia, as well as help you prepare any necessary documents. Finally, they will be able to assist you with any necessary court hearings.