Estate Planning & Probate
Estate Planning
Our estate planning attorneys develop flexible and personalized plans to minimize taxes on the transfer of wealth. We apply up-to-date techniques to help our clients achieve their goals, including the creation of family limited partnerships and limited liability companies, asset protection tools and trusts, grantor trusts, and installment sales and gifts for family members and for charities.
We design, structure, and draft a variety of wills and specialty trusts for our clients for planning throughout the lifecycle. For example, we have a unique fixed fee program for young adults with emerging estates – pairing them with an attorney who can grow with them as their needs change. We also create the documents and directions needed to craft solutions to more complicated situations like late-in-life estate planning.
What is Probate?
Probate is a judicial proceeding to manage assets and debts of a decedent’s Estate. The court appoints a person (Personal Representative) to explore the affairs of a decedent’s Estate and gives the appointed Personal Representative authority to manage the assets and debts of the Estate. Probate helps insure an orderly collection of assets, payment of debts and claims, and proper distribution of the Estate assets to heirs.
When is Probate Necessary?
We have often heard the opinion that Probate should be avoided because of the expense and inconvenience of Probate. It is better to avoid Probate through sound estate planning, but Probate is often the only way, or the prudent way, to manage an Estate. There may be assets which only a judicial Probate can reach or can transfer title to the proper heirs. Estate assets may be in the possession of someone using Estate assets contrary to proper winding up of the decedent's Estate, and Probate becomes necessary to properly regain control, manage, and distribute the assets. Many assets may not necessitate a judicial Probate proceeding. Examples of non-Probate assets are co-owned assets with rights of survivorship, life insurance policies with named beneficiaries, retirement accounts with named beneficiaries, and bank or financial accounts with rights of survivorship or pay on death (POD) beneficiaries. If real property, bank account, financial account, or some other titled asset is in the decedent’s sole name, then the real property, monies, or assets may be unavailable to the Estate and heirs until a Personal Representative is appointed in Probate.
The Role a Last Will and Testament Plays in Probate
The deceased person’s Last Will and Testament is the document used in Probate. The original Will is submitted to the court, and the court uses it as the document expressing the decedent's intent as to what should happen within Probate. The Last Will and Testament typically names the beneficiaries, designates a Personal Representative, appoints a guardian for minor child(ren), and states other conditions to be followed in the administration of the Estate. The Last Will and Testament is not used to avoid Probate, but the document used in Probate.
What Happens If There is No Will?
If a person dies without a Last Will and Testament, Georgia law provides a Probate asset distribution scheme to the decedent’s family members. Probate without a Will is called Intestate Succession. Most of the procedures in Probate are the same for Estates with or without a Will. For many Georgia families, the Intestate Succession laws might be appropriate. However, with the many later-in-life marriages and/or contemporary blended families, the Intestate Succession laws probably will not match the decedent’s wishes. Even a modest estate plan, such as a simple Will, can avoid the application of the Intestate Succession laws - one of the best reasons to do a Will.
What happens in Probate?
If Probate is necessary to deal with an Estate, Probate is initiated with the filing of a written document entitled Petition with an appropriate Probate Court. The court appoints the Personal Representative (Executor or Administrator) and issues a Letter of Testamentary (Will) or a Letter of Administration (Intestate). The Letters of Testamentary or Letter of Administration give the Personal Representative the authority to manage the assets and debts of the Estate. The Personal Representative notifies interested parties of the Estate proceeding, collects together the assets of the Estate, reports the assets to the court, makes an investigation of debts and claims against the Estate, pays valid claims, files tax returns, and does a periodic accounting to the court of the financial transactions within the Estate. When the Estate is ready to close, the Personal Representative does a Final Accounting to the court, obtains a Judgment of Distribution to beneficiaries, distributes the assets to beneficiaries, obtains acknowledgment of receipt from beneficiaries, reports the distribution to and receipt by the beneficiaries, and obtains an Order closing the Estate. There are many details which will probably require the attention of a knowledgeable and experienced Probate attorney.
Administration of an Estate
Administration of an Estate can involve legal issues in many different areas of law, such as elder law, trust law, real estate law, insurance law, family law, contract law, business law, corporate law, debtor-creditor law, Federal and State tax law, and/or civil litigation. Choosing an attorney with an extensive knowledge and a depth of experience in many areas of law and finance can make the difference between an orderly or chaotic administration of the Estate.