What is Probate, Anyway?
A recent client urged, “I want you to do everything you can to avoid probate when I die.” This statement was immediately followed by, “What is probate, anyway?”
Good question! Think of probate as recycling of assets, or as the legal embodiment of the old saying that you can’t take it with you. My dad used to say that you’ll never see a trailer hitch on a hearse!
When a person dies owning a house, a bank account, a retirement plan, a car, stocks, or a business, those things are no longer of any use to the dearly departed one. Probate is the legal method of passing title of certain assets to the living. If you have a will, your stuff will go to those you choose; if not, it will pass as the state determines. Probate also is the process of settling the debts of the deceased.
Not all property has to pass through probate. Certain non-probate assets are designated to pass directly by law. Examples are: (1) a house co-owned by spouses as joint tenants with right of survivorship (wording on the deed has to be precise); (2) a 401 (k) or life insurance policy with a beneficiary designation; or (3) a joint bank account.
In the case of probate assets -- those that do not automatically pass by law or beneficiary designation -- the legal heirs or beneficiaries of a will must file a petition with the probate court in the county where the deceased person resided at the time of death. This Petition, known as a Petition to Probate Will in Solemn Form when the decedent has a will, or a Petition for Letters of Administration when there is none, asks the Probate Court to name a legal representative of the estate – the Executor when there is a will, or Administrator when there is none (Sometimes the generic term Personal Representative is used to cover both).
Heirs at law -- those who would inherit if there were no will -- must either consent to the Petition in writing or be given the opportunity to object to the petition. Once named, the estate representative has the legal authority to collect assets, determine debts, resolve claims, determine if taxes are due, and distribute what’s left to the heirs or beneficiaries.
After the death of a loved one, an experienced probate attorney can help sort through this confusing maze of probate and non-probate assets, and negotiate the numerous technical requirements to complete the process. Attorneys in Georgia typically charge by the hour, so that the cost of probate depends more on the complexity of the estate than the value of the property. By doing it right the first time, they will save you money in the long run. If you have experienced the loss of a loved one and need advice, call me, John O. "Jack" Moore at (770) 277-7767 or email me at johnomoorelaw@gmail.com for a free consultation.
