Experienced Probate Attorneys in Georgia
Losing a loved one is emotionally heart-wrenching and extraordinarily difficult. Unfortunately, being responsible for managing your loved one’s estate and final affairs can make and already terrible situation seem unbearable. To assist you in handling your job with confidence and ease, our local probate lawyers have put together a checklist of “to-do” (make this word a hyperlink that links to the section below) items to help you stay organized and on top of your responsibilities.
When a loved one passes away, you may need to contact an attorney at Hollowell, Foster & Herring, P.C., to help you settle their estate. Our Firm has extensive experience in estate planning, probate, and elder law issues. We represent individuals, couples, businesses, and families with co-owned properties of every type.
An estate does not always have to go through probate court first, so it is important to know what a member of our legal team can do when the probate process is necessary. Losing a loved one is hard. It is an emotional time. You have a lot on your plate with funeral arrangements and spending time with loved ones. The last thing you want is to worry about a legal process called probate. You deserve to focus your time on your family.
What is Probate?
Probate is the legal process of distributing a person’s assets and paying liabilities based on their wishes in the will. Probate is required for nearly every estate. During probate, the judge and lawyers will help guide the personal representative or executor of the estate. The personal representative will pay all of the debts and liabilities the decedent had and then distribute any remaining assets. For their services, the personal representative is paid a fee from the estate.
Who is Involved in Probate?
There are many different people involved in the probate process. These include:
- You or someone else serving as the personal representative
- The Clerk of Court
- A judge
- Current law and how it affects your assets
- Your probate attorney
- The IRS
That last one may cause some anxiety, but part of probating an estate is paying final income taxes. Do not worry, we are here to help. By using one of our experienced attorneys to guide you through the probate process, you can rest assured your loved one’s estate will follow the guidelines set forth.
When is Probate Necessary?
Not all items go through probate, so it is important to know what does have to go through probate and what does not. Anything the deceased owned — in his or her name alone — may have to go through probate. We can help you determine what is part of the probate estate and what will not go through probate. Some of assets that do not go through probate include:
- Joint property: This includes bank accounts, vehicles or properties that are owned by more than just the deceased. The survivor automatically owns the property upon the joint account holder’s death.
- Payable-on-death bank accounts: A payable-on-death bank account automatically goes to the beneficiary.
- Life insurance proceeds: If the life insurance policy specifies a beneficiary, the policy pays that person and does not go through probate.
- Retirement accounts: If the retirement account specifies a beneficiary, the funds go to that person without the need for probate.
- Living trust assets: Assets may have a name of a trustee for a living trust specified, and in this case, these assets do not have to go through probate court.
What May Be Subjected to Probate?
Anything a person owned when he or she passed away, may be subject to the probate. Probate is a court-supervised process that entails proving the validity of a will and distributing assets within the decedent’s estate. Assets may be things like property, bank accounts, life insurance policy, art collections, vehicles, jewelry, and more. If you need help during the probate process after your loved one passed away, we recommend meeting with one of our attorneys as soon as possible. There are often four types of assets that may be subject to probate, including the following:
#1 Individual Assets
As a member of our legal team may inform you, individual assets entail all the property that are listed with the decedent’s name without any co-owners. Examples of individual assets can include investment accounts, bank accounts, bonds, stocks, cars, airplanes, boats, real estate, artwork, memorabilia, and business interests.
#2 Tenants-In-Common Property
Tenants-in-common assets can include property that is titled in the decedent’s name along with one or more individuals. Every owner has a percentage of interest for the property (such as 50/50, 25/75, 80/20, etc). Tenant-in-common titles are often named this way for property that is divided among unmarried owners.
#3 Beneficiary Assets (with Predeceased or No Beneficiary Descriptions)
Assets with payable-on-death or beneficiary designations may have to go through probate, if the beneficiary passed prior to the decedent. The assets may include things like medical savings accounts, health savings, life insurance, retirement accounts, 401K, IRAs and annuities. If the named beneficiaries predeceased the decedent, the asset usually diverts back to the estate and becomes part of probate. The same thing may happen if the decedent listed the estate as the beneficiary, or did not name any beneficiaries at all.
#4 Assets Outside of the Trust
A person may establish a living trust and move assets into it for protection. However, this does not absolutely mean that none of his or her property will go through probate after death. Living trusts can help avoid probate of the property included, but so much time may go by that the person acquired more assets and failed to pass these into the trust as well before passing away. One of our attorneys may emphasize the importance of updating your trust every few years or as life changes happen, so no assets end up accidentally being left out.
If an estate is small, you may be able to go through a simplified probate process.
How Long Does Probate Take?
Each estate is unique. While there are guidelines that state probate should not take more than one year, that is not always the case. Some estates are extremely complex and require many years to probate and close. Other estates take a few months. There are certain things that must happen during probate and there are waiting periods. For instance, when you file a notice to creditors to alert any creditors that they need to file a claim against the estate to be paid, you have to wait a certain number of days for those creditors to file claims. This means that even in simple estates, you are looking at a minimum of about six months.
At Hollowell, Foster & Herring, we understand just how difficult it can be to settle your loved one’s final affairs. If your family member’s estate has to go through a probate process, things might get a little overwhelming and confusing. That is why we encourage you to speak with one of our attorneys. We work hard for our clients and try to make the probate process as stress-free as possible for them.
A probate dispute aggravates the stress and pain of your emotional loss. When probate disputes arise, Hollowell, Foster & Herring, P.C., is prepared to challenge an ambiguously or incorrectly executed will, or defend your rights against disgruntled beneficiaries. Our experienced attorneys can use their skills to minimize the hostilities between family members that often arise during this emotionally charged process.
Here are some of the benefits of hiring a probate lawyer:
- Save Time: Taking a family member’s estate through the probate process can be a time-consuming matter. With so many other things on your plate, you shouldn’t have to worry about handling the entire probate process on your own. We have the experience to finish the probate process as quickly as possible. With your lawyer doing all the legwork, you can reduce a lot of stress and have more time to take care of your family.
- Complete Paperwork: The probate process involves a lot of paperwork. Some of this paperwork can be confusing and difficult to understand for the average person. Even a small error can slow down the entire process. We can remain by your side and help out with the paperwork to ensure you understand everything you are filling out.
- Cost Savings: While hiring an attorney does cost money, it could potentially save you more money in the long run. An experienced probate lawyer can prepare and process documents efficiently and reduce time in court, which may help you save money. A probate lawyer could also provide counsel that helps to minimize estate taxes.
- Alleviate Tension and Stress: Estate administration can sometimes create family tension. For example, if one family member does not receive the inheritance he or she deserves, that person might become angry and take it out on other family members. We can help alleviate some of the tension between family members and help them understand the process better.
- Legal Knowledge: When you are dealing with something as complex as estate administration, it helps to have an experienced lawyer by your side. We have likely handled similar cases to yours in the past and should be prepared to handle any unique challenges that may come your way. Our attorneys at Wiseman Bray administer estates constantly and we are prepared to lead our clients in the right direction.
- Support: Handling an estate administration after the death of a family member can be quite daunting. Our legal team can provide endless support through the entire process and be there to offer guidance. If you ever have a question or concern about something, you can just call your lawyer and talk to him or her about whatever is troubling you.
What Exactly Does a Probate Lawyer Help With?
A probate lawyer may help the Personal Representative of the estate go through the probate process. Your lawyer may also inform you that probate can vary from case to case depending on the existence of a valid will. We can advise you of the laws in your state and help you determine what to expect in the probate process.
A member of our legal team may address several items, including:
- Probate is not required in every case
- Some probate cases involve no claims of disputes or conflicts and are closed out quickly
- Under Georgia probate law, the personal representative in the estate must publish notice of the proceeding in the local newspaper within 60 days of beginning to serve in this role
- An estate administrator could be held personally responsible for any malfeasance occurring in the probate case
Probate Disputes and Your Estate
Georgia probate law outlines who has the right to challenge estate planning documents as well as what happens if there is no will. Probate disputes can emerge for many different reasons and can add a layer of complexity and additional tension for family members. These disputes include claims against the executor for mishandling funds and allegations of undue influence or lack of capacity surrounding the creation and signing of a will. Probate disputes can not only cause stress to the parties involved but can also delay the closing of the estate administration. If there is no will associated with an estate in Georgia, the proceedings are known as intestate. This means that the court is responsible for determining what happens to the decedent’s property. Without a will, all assets will pass to the surviving spouse if there are no children. If you leave behind both a spouse and children, they will split the assets remaining in your estate. If you have no surviving spouse or children, the executor must take on the job of finding your next of kin.
Setting Up Your Estate
Most probate disputes in Georgia can be avoided with proper estate planning. The role of administrator and executor is an important once, since this person must be organized, financially savvy, and prepared to possibly interact with your beneficiaries. In addition to other payments and paperwork, the estate administrator distributes remaining property to beneficiaries at the end of estate administration. Other professionals and stakeholders can help you outline who will serve in this role and how your estate will be created. These include:
- Locating probate and non-probate assets
- Collecting life insurance money
- Obtaining appraisals of the deceased’s property
- Preparing and filing the documents the probate court needs
- Rolling over and making elections for retirement plans
- Taking care of the estate checking account
- Advising on any payments of outstanding debts and final bills
- Determining any inheritance or estate taxes
- Dealing with any income tax issues
- Helping with selling estate property
- Requesting court permission as necessary
- Retitling the real estate
- Settling disputes between beneficiaries and personal representatives
- Distributing remaining assets after the final estate has been settled
Once Probate Has Concluded
Once probate is complete, beneficiaries are awarded their portion of the estate as written in the decedent’s will. If at any point during the probate process a beneficiary or family member feels their loved one’s legacy is not being handled correctly, may be able to take action to set things straight.
This time may also accompany a heavy period of grief, so an attorney at Hollowell, Foster & Herring, understands that you may need some legal insight and compassionate support. Do not hesitate to reach out to us to book your free consultation. Probate may take months or even as long as a year before closing, so we suggest receiving legal counsel periodically along the way.
Contact Hollowell, Foster & Herring Today
Our Team has the keen eye you need to make sure your loved one’s inheritance goes to the right people. Please do not leave it to yourself to determine whether your loved one’s estate needs probate. That could cause even more delay and be more costly than simply hiring the right probate attorney from the start.
As the personal representative or executor of the estate, you do not pay us anything out of your own pocket. The estate pays our fees and it pays yours, too. For your services in this process, you will receive payment once the estate is closed, which should happen within one year.
The probate process can be complicated, and it is the last thing you want to deal with after losing a loved one. Our compassionate staff and attorneys understand and will gently guide you through the process. Contact one of our attorneys at 404-658-9900 today.
Step 1: Contact Immediate Family
Start making phone calls as soon as you can to let your closest family members know of your loss. Not only will these people want to know, but they can also be a wonderful source of support for you in your time of need. Further, your closest family members can also help you make important decisions that will need to be made in the coming days and weeks ahead.
Step 2: Make Funeral Arrangements
If your loved one did not express his or her wishes for which funeral home to use and other final preparations, then you will need to make those decisions yourself. It can be helpful to discuss your options with close friends and family, but either way, we would encourage you to follow your heart in regard to what you think the deceased would have wanted. If your loved one was a veteran, this is also the time to look into any special arrangements that may be available to honor his or her service. Other final arrangements you will need to take care of include:
- Paying for the funeral and burial
- Finding pallbearers for the casket
- Arranging a post-funeral reception
- Purchasing a headstone
- Keeping track of people who reach out to the family with cards and flowers
- Writing an obituary
Step 3: Contact Extended Family and Friends
Once your closest family members have been informed, get the word out to other people who your loved one knew. Enlist the help of your immediate family to help make phone calls and send emails.
Step 4: Take Care of the Deceased’s Property
If your loved one lived alone, make sure the house is securely locked so no one can get in. Also, make sure the car is locked and parked someplace where you can keep an eye on it. Finally, you can contact the local police to let them know that the house is vacant, and if the home is a rental, you should contact the landlord or property manager, too.
Step 5: Contact the Post Office
If you fail to contact the post office, your loved one’s mail will start to accumulate quickly which will be a sure sign that the house is empty. Further, there is likely mail that needs to be attended to as well. Inform the post office that your loved one has passed on and have the mail forwarded to you or someone else who is willing to accept it. As items like credit card bills and subscriptions come in, begin contacting the proper people to have them cancelled. Make a list of all the important bills that come in through the mail and share that information with the executor.
Step 6: Get Duplicate Death Certificates
In the weeks following your loved one’s death, you will need several copies of the death certificate. So, get at least 10 of them as soon as you can. You can either contact the funeral director to help you get them or you can order them from the vital statistics office of the state where the death occurred.
Step 7: Notify the Social Security Office
If your loved one was receiving social security benefits, you need to contact the local social security office as soon as possible. Do not let this responsibility lapse. If overpayments are made, the process of paying that amount back is complicated and a headache that you do not want to have to deal with.
Step 8: Cancel Medicare or other Insurance Policies
As you go through your loved one’s personal effects, make note of Medicare and other insurance policies. Make sure you cancel everything of that nature to which your loved one was making payments.
Step 9: Check On Employment Benefits
If your loved one was working, contact his or her employer to talk about a pension plan, credit union accounts, union death benefits, and any other accounts that the deceased may have had through work.
Step 10: Notify Financial Institutions
Let all of your loved one’s financial institutions know of your loved one’s death. Doing so is especially important for places where interest can accrue or late payments can be assessed for lack of payment. The types of institutions that should be informed include:
- Credit Unions
- Mortgage holders
- Credit card companies
- Financial advisors
- Credit reporting agencies
Step 11: Contact a Tax Preparer
A tax return may need to be filed on your loved one’s behalf. To make it a bit easier, gather up the bank statements for all individual and joint accounts for the month of your loved one’s death.
Step 12: Notify the Election Board
Although this task is not the most important on the list, it does still need to get done. Many people forget this step, and it has resulted in there being over two million deceased people who are still registered to vote.
Step 13: Handle Miscellaneous Cancellations
Additional cancellations that you will need to make on your loved one’s behalf include:
- Driver’s license
- Email and website accounts
- Memberships in organizations
Taking care of all of these responsibilities upon the death of a loved one is crucial to making sure that no problems arise down the line. Consider it a show of love and respect for the deceased that you are willing to take on these tasks to make the process easier. If you need help getting any of these tasks completed, or if you are ready to start the process of filing for probate in the greater Atlanta area to administer your loved one’s estate, we invite you to contact our probate and estate attorneys at 404-658-9900 to schedule a consultation.
COMMON MISTAKES AN ADMINISTRATOR OR EXECUTOR CAN MAKE DURING PROBATE AND HOW TO AVOID THEM
Many people have heard of the probate and estate settlement process but wonder what it is and what the probate process entails. To put it simply, probate is the process the probate court uses to make sure the deceased person's creditors are paid through estate settlement and that anything left goes to the deceased's beneficiaries.
Unfortunately, the probate and estate settlement process can be anything but simple, depending on the size and nature of the assets to be administered, the number of parties involved in the probate and estate settlement process, how well those parties get along, and many other factors. Complex probates and estate settlements are made all the worse by the fact that the family is in a state of mourning and under a great deal of stress. The last thing most families want to deal with at a time like this is the probate court system.
What follows below is a list of common mistakes that can be costly if not avoided.
NO OUTCOME IN MIND
Beginning with the end in mind provides clarity and focus throughout the entire probate process.
Although it can be an overwhelming experience (especially if the decedent is your close relative), it does not have to be stressful, if you have a clear reminder of and commitment to what the end goal is. Here are some examples: peace of mind, pay off debt and taxes a.s.a.p., settle with heirs, and maximize value of estate, just "be done with it and get it over" and others. Whatever the end goal is, it must be agreed upon by all so that you get support and have confidence in the decisions you make as the executor/administrator.
NOT EDUCATING YOURSELF ON THE PROBATE PROCESS AND DECIDING IF YOU NEED / WANT A LAWYER
your head. It does make a lot of sense to talk to an attorney about the process and see what he/she thinks might be appropriate in your situation. You may then decide that you can handle this "pro per" meaning without a lawyer and represent the estate yourself as you go through the probate process.
You might decide to use an attorney because your case might be slightly complicated or the estate is not in your hometown or state or you simply have no time on your hands. Financial planners, CPA's, local realtors, contractors and estate planning firms are experts in their perspective field and can give you specialized knowledge which pays off in both the short run and long term.
WAITING TOO LONG TO BEGIN THE PROBATE PROCESS
As time goes by taxes add up, creditors become pushier and heirs more impatient. Losing a loved one is devastating and moving forward can at times almost seem emotionally impossible. However, waiting too long will add pressure and demands from others to your mourning process. Give yourself time to mourn but also realize that the longer you wait the greater the demands.
FAILING TO QUICKLY AND PROPERLY TAKE CONTROL OF AND PROTECT ESTATE ASSETS
This is especially critical for real estate, which must be properly insured, secured against break-ins if vacant, and protected against loss for nonpayment of taxes and mortgages. If you are not in the same city or state this can become a challenge for you, especially if curb appeal suffers and squatters take over. A good realtor that understands your probate needs can also help you maintain the property by using people in his/her network. You must take exclusive control of an estate's cash. Do not permit another person to have access to an ATM, debit or credit card, bank account.
FAILING TO PREPARE AN ACCURATE INVENTORY OF ASSETS
If the deceased's estate has debts or the deceased owned real estate some form of probate estate administration will be needed. Preparing an accurate inventory of assets, which should only reflect assets that have actually been collected and placed under the control of the administrator or executor, is important. One must account for everything and understand where and how things will pass to the deceased's heirs either under the Will or by intestate succession. For example, does the estate include jewelry, collections or family heirlooms to be passed on? Are there oil, gas or mineral rights or royalties that need to be disposed of?
NOT KNOWING YOUR OPTIONS WHEN IT COMES TO SELLING REAL ESTATE
Real Estate is the biggest component of the estate's assets. Depending upon your desired outcome and goals you should know that you have options in real estate. The basic and straight forward approach is to list with a local realtor. You may also find yourself with real estate that needs some work and could therefore fetch a greater price after some repairs. If you do not have the cash for the repairs, but ample time on your hands, there are people I can refer you to that will gladly partner with you on the repairs. Finally, if you are in a rush, don't have cash to fix up the real estate and just want to get done with it; an investor will pay cash for it. Knowing your options gives you flexibility which gives you power in your decision.
MARKETING REAL ESTATE TOO LATE
Do not make the mistake of waiting too long to market any real estate, if you'd like to settle the estate as quickly as possible. Once you have been approved as administrator or executor of the estate, you can begin soliciting offers on the real estate. In other words, parallel to handling everything else, you can list with a realtor, get advice, solicit offers and even go into escrow. Escrow will not close until you have acquired letters testamentary/letters of administration. As long as your buyers are aware of this, you will do fine. Be sure to use a realtor that understands probate.
CHOOSING FRIENDS OVER THE RIGHT PROFESSIONALS TO DO A PARTICULAR JOB
Now that you might need an attorney, realtor, tax advisors, financial planning and estate planning, you can find yourself surrounded by well-meaning friends that want to help, e.g., you might have an attorney friend that practices business litigation that will help you with probate. This is where you must be cautious and make sure you pick your team of professional experts that will get the job done because this is all they do. Similarly, you might have a realtor friend that specializes in a certain area of town or other type of real estate that wants to list the real estate for you. Again, having a realtor with probate experience that specializes in the area of your real estate location will benefit you and ensure you get the most out of it.
NOT KEEPING ACCURATE ACCOUNTING RECORDS
When preparing accounts, failing to use proper schedules; failing to place entries on proper schedules; failing to adequately describe receipts and disbursements; lumping entries instead of itemizing them; and failing to correctly show carrying and market values, gains, losses, dividends, and interest payment for investments. If you are not comfortable with or not used to accounting and balance sheets, it makes sense to enroll a professional such as a book keeper or CPA to help you. At the time of settling the estate all numbers must align and make sense. If not, you might get objections from the heirs or maybe even a judge. In many cases where records were not properly kept, the probate process lasted up to 24 months when it should have taken half that time or less.
NOT PICKING UP MAIL FROM DECENDENTS PROPERTY
This is a simple one. As soon as you can, ask that the post office forwards all mail to an address or PO Box that you have access to. The reason being, that you may miss out on important notices and claims from creditors and/or lenders. Another good reason is that you do not want the property to be too inviting for burglars or vandalism. When mail piles up, it is a sure sign that the property is vacant.
NOT KEEPING OPEN COMMUNICATION WITH HEIRS
This goes back to the initial mistake "No outcome in mind" when you begin the process. At the outset of probate it is crucial that all heirs are on the same page and agree that you handle the estate. Along the way you may have smaller setbacks and it will not go as planned. Make sure you communicate every setback and progress. If an heir counts on his/her inheritance by a certain date based on the agreed upon goal you all set, then any delays will greatly impact the heir's life.
FAILING TO CONCLUDE THE ESTATE
Once executors get to the end of an estate, oftentimes they just distribute the money without ever formally closing the estate. Before distributing assets, you can go to a court and get the okay from a judge, or if you want to skip that piece of the probate process and your family is all in agreement, you can form a family settlement. This gives everyone records of the estate administration so that they know where assets went and how much expenses were, so that the family can agree on these and not hold the executor liable for any mistakes. By documenting everything among family members, if later debt pops up, everybody agrees to give the money back and the executor has managed their liability. This must be prepared by an attorney and is a very powerful tool in protecting the executor's liability