What Factors Set the Stage for A Probate to Occur?
Before starting probate, two things must be considered. First, what assets are subject to probate? These assets are likely limited to those that are in the name of the deceased and which don’t have a designated beneficiary. Second, we will want to see if the Will in question meets Georgia’s legal requirements. Typically, Wills drafted by an attorney is fine but we give extra scrutiny to those drafted online and with fill-in-the-blank forms. This is especially true if the deceased was vulnerable to undue influence or didn’t understand the contents of their estate
The first factor to consider is to look at what assets there are and see if these are assets that we need to push through probate. Remember, anything that is solely in the name of the deceased person, if there are lots of assets or if the family is not going to agree to a simple non-probate distribution. We start creating the need to present the estate for probate. More broadly, it can be said that someone dying with assets creates the need for probate.
What Are the Top Misconceptions About the Probate Process?
The biggest misconception that people have about probate is that it is a difficult and an expensive process. This does not have to be the case and for the most part, it really is not. If your attorney has drafted a good Will and your family members agree to admit that Will into probate, the filing process can be done in less than a week, often in one day. The estate can then be distributed shortly thereafter. Working with an attorney, this process does not have to take a long time. More importantly, it does not to be contentious and expensive. These misconceptions drive a lot of people to unnecessarily avoid probate until years after the death, which can create lots of new problems. It is best if they start the probate process early, distribute the property, and put the process behind them.
Under What Circumstances Is Probate Necessary?
Probate is necessary if a person died with a Will owned property in their name alone. The goal is then to distribute that property to the people listed in the Will. Additionally, if someone dies as the sole parent of children under the age of eighteen, that Will should be probated so that the guardian nominated in it can be quickly granted a conservatorship and/or custody of the children.
Does all of a Deceased Person’s Property have to go Through the Probate Process If It is initiated?
All the property from a deceased person must go through probate if it is in their name alone. Jointly titled property with a right of survivorship does not go through probate. Additionally, property with a payable on death provision or a beneficiary designation does not go through probate.
Even for small estates, the probate process is fairly straightforward enough for me to recommend that they go through the probate process.
What Are the Best Options for Avoiding Probate?
When we do estate planning with the goal of avoiding probate, we look at the client’s assets and make sure that they are either transferred to a trust, jointly titled, or payable on death to the appropriate person. Additionally, we make sure the beneficiaries are up to date on the life insurance policies, retirement accounts, and any other designated beneficiary account/policy.
We also make sure that all designated beneficiaries are adults over 18 who can manage the property. If not, we explore the possibility of leaving that property to a trust so that a trusted adult or fiduciary can manage the property until the child has reached a certain age or met other goals.
There are a lot of things that you can do, but the main goal of getting assets jointly titled or having an avenue is to directly get those assets off a person’s name upon their death.
Can Probate Ever Be a Better Option Than a Living Trust?
In some cases, probate can be more cost effective option than having a living trust. This is especially true if the estate has a small value and the heirs are both few in number and over the age of 18. For example, let’s use an example of a married couple. Both spouses have no children and few assets. If both spouses in this example have Wills leaving everything to the other spouse, then a trust is an unnecessary extra step. The Will can be probated very quickly and at a relatively small expense.
In very particular scenarios such as the aforementioned, it will be faster, easier, and cheaper to have a Will drafted and then probated. However, before making that conclusion, I strongly recommend talking with an experienced estate planning attorney, just to verify that and also to make sure that they understand what they can gain or lose by having a trust.
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