It’s become more and more common now to see clients come in with probate cases that need to be dealt with in multiple states. Many seniors today are “snow birds,” meaning they spend their winters in states with warmer climates while keeping their actual residency in the state they’ve spent most of their lives in. These seniors often own property in the state where they spend their winters, whether it’s real property like a vacation home or timeshare, or even tangible property like a car, boat, or financial account.
When the senior passes away, a situation is created where an out-of-state or ancillary probate proceeding must take place to administer the out-of-state property. Whatever the case may be, clients dealing with an out-of-state probate often need help since they are dealing with two or more sets of probate rules and regulations, all of which differ from state to state.
Cobb County probate lawyers find that one of the biggest issues involving an out-of-state probate proceeding is cost. Typically, you will need to pay probate court fees for each property held under a different probate court jurisdiction. In addition, you may be faced with extra accounting and legal fees. If possible, you should try to find an attorney who is licensed both in the home state of the deceased and the state where the ancillary probate is taking place. While the fees may be higher than usual due to multiple probate filings, it will still likely be cheaper than hiring more than one attorney to deal with property and assets in each respective state.
Another serious issue can arise if the decedent did not leave behind a Last Will and Testament. When this happens, the probate court will often order distributions of the estate based on the laws of intestacy. The problem with out-of-state probates is that every state has different laws of intestacy, meaning the heirs in one state may not be the same as the heirs in another. This is a very tricky situation and one where Marietta probate attorneys urge their clients to proceed with caution as it may cause additional stress for already grieving family members.
Are there ways to avoid an out-of- state probate proceeding? Yes, but it all depends on the state where the additional property is held since, as noted before, every state has different laws concerning probate. Some of the techniques Cobb County probate lawyers use to get around an out-of-state probate often involve placing the property into a revocable living trust, owning the property jointly with someone else, or drafting a type of deed where the property is transferred upon death.
However, Cobb County probate lawyers caution that this type of planning must be done BEFORE death, and attorneys must be consulted to make sure these techniques will actually work in the state where the property is held.
If you are currently dealing with the complexities of an out-of-state probate and need assistance, or you would like to plan ahead to avoid the possibility of an ancillary probate for your loved ones, please contact us at 770-425-6060 or firstname.lastname@example.org to set up a consultation.
Wills and trusts administration lawyers in Cobb County, Georgia, often have the opportunity to work with local families who—in addition to planning for their regular home—also have a vacation home to take into consideration during the planning process. While you might think that real estate prices or the vacation home’s location would be the driving forces behind putting it through the wills and trusts administration process, there are actually other, highly compelling reasons.
Vacation homes don’t just come with the baggage you pack to spend a family holiday on the lake, in the woods, or on the coast; they also come with a lot of emotional history. By working with a wills and trusts administration lawyer, those leaving the vacation home behind can take this history into consideration. They may be best served to really spend some time taking their heirs’ perspectives into consideration when determining how the home should be handled.
For some family members, the vacation home may be an important part of family history, full of memories and personal rites of passage. These folks might prefer that the property be safeguarded in some sort of trust or passed as-is to heirs in a will. On the other hand, there may be family members who are less emotionally attached to the home and see it as their parents’ investment in a stable financial future. These family members would be more inclined to sell the property and share the proceeds.
There are plenty of other aspects of the situation that the original owners would want to explore with a wills and trusts administration lawyer in Marietta GA. For example, would any potential heirs be financially able to maintain the property, pay taxes on it, etc? If not, then it may be time to consider either selling the vacation home or finding a means to fund the trust so it can meet these obligations.
Other thoughts to keep in mind:
- Do heirs live close enough to the vacation home to actually use it?
- Could you leave the vacation home to those who would most appreciate it and balance that with a different inheritance for others?
- Is there someone you could name as a trustee who could oversee the property on behalf of the trust?
- Would it be possible for some family members to buy others out of their portion of the property?
- Could the property be rented out when not in use by family members as a way to support its own upkeep?
Because there are so many variables that can come into play—money, grief, family tension, tradition, etc., etc., dealing with a vacation property during estate planning is something that is probably best done under the guidance of an experienced wills and trusts administration lawyer in Marietta.
For additional questions about estate planning or wills and trust administration in Georgia or to speak with a will or trust lawyer, contact our office at 770-421-0808 for assistance.
When working with families dealing with probate on a loved one’s estate, Marietta probate lawyers often find themselves answering a variety of questions about how to avoid probate in the future. There are a whole lot of tools at the disposal of a Marietta probate attorney when it comes to protecting an estate, and each has its pros and cons.
One method that older individuals sometimes consider to keep some assets out of probate is to have their adult children added as “joint owners” of their bank accounts. Essentially, this means that the account, and its contents, becomes the property of not only the parent, but also anyone else named as a joint owner. The intention is that once the parent passes away, the or children can immediately access the money without it ever having to go through probate.
This approach can work, and it’s possible that a Marietta probate lawyer will recommend it as a viable option for passing on assets. On the other hand, he or she might not because adding others to your accounts can lead to other problems. These don’t affect every individual, so you will definitely want to discuss it thoroughly with a probate lawyer in Marietta. That said, some potential pitfalls should be considered.
For one thing, every joint owner will have full access to the account. Even while the parent is alive, the adult child or children could choose to spend however he or she wishes with no legal repercussions. Sadly, many parents have lost their entire income or savings when their children have taken advantage of the situation. To take it a step further, unless every single child/heir is listed as a joint owner on the account, whomever has been named could theoretically keep all of the money without splitting it with siblings.
Another very real concern is that both the parent and the child could also suffer should one of them be in debt. Creditors could demand money from anyone with their name on the account, regardless of who put the money in there. So, if the parent’s Social Security check was deposited but the child (who was a joint owner on the account) owes back taxes, it’s possible that the Social Security money could be seized to pay the debt.
Again, these are just matters to take into consideration. It’s up to you and a good Marietta probate lawyer to determine what will work best for your particular circumstance and situation.
Image courtesy of Stuart Miles at FreeDigitalPhotos.net
Cobb County probate lawyers have a pretty complex job to do, and it can be even more difficult because of the fact that many people don’t really even know what the probate process is. This isn’t all that surprising, as by the time a person needs probate, it’s because he or she has passed away. That means that someone else needs to be in charge.
Probate is the court process that happens when a deceased person’s estate is administered. There are a lot of steps to the process, which is just one of the reasons that those left behind find it so helpful to work with an experienced probate lawyer in Cobb County. He or she can help to make sure that these steps are being followed in accordance with the law and to their client’s best advantage.
Different states generally have different probate laws, which is one of the reasons it’s so important for Georgia residents to work with an attorney from our state. If the decedent held property in other states, it’s quite likely that an additional probate lawyer from that area will need to be consulted, as well.
A lot of people would prefer to avoid probate altogether, and they may have worked with an estate planning lawyer to try and make this happen. Why would they go to that trouble?
- It can take a very long time for an estate to make it all the way through the probate process.
- Everything revealed in probate becomes public knowledge.
- Probate costs can eat away at the value of an estate.
A good Cobb County probate lawyer will do his or her best to expedite the process, minimize discomfort, and protect assets as much as possible. Perhaps one of his or her most important jobs is simply to talk individuals through this unfamiliar landscape and to help set reasonable expectations for those who haven’t dealt with the process before.
During probate, the courts will name a representative for the decedent and will then charge that person with compiling an inventory of assets. The probate lawyer will be very helpful in figuring out how to do this. Based on current law, the courts will determine how assets are to be distributed, including to pay off debts. If there is a will, this will be taken into consideration. Many folks don’t realized that even if they have a will, the estate will still go through probate.
There are other alternatives in estate planning, however, that can keep an estate out of the process. For those who need it, though, an experienced Cobb County probate lawyer can make a huge difference in the outcome.
Heirs at Law in Georgia
The following outline is a summary of the Georgia law that determines who are heirs at law of a decedent (the person whose death without a will (intestacy)) requires the administration of his or her estate). The actual statute may be found in the Official Code of Georgia Annotated (OCGA) Section 53-2-1.
The heirs are:
- The spouse if there are no children (and no children who died before the decedent leaving living children of their own or descendants of living children)
- The spouse and children if there are children, and the children of any child or children who died before the decedent (as well as the deceased child’s descendants if any of the deceased child’s children also predeceased the decedent)
- The parents if there is no spouse or children, descendants of deceased children, grandchildren, etc.
- If no spouse, children, descendants of children, or parents survived the decedent, the brothers and sisters of the decedent and the descendants of any deceased brother or sister who predeceased the decedent
- If none of the above were living at decedent’s death, the grandparents
- If none of the above, uncles and aunts and descendants of any deceased uncle or aunt, but if all uncles and aunts are deceased, then first cousins share equally, rather than siblings taking their parent’s share
The more remote degrees of kinship are determined by a mathematical formula involving the relative in question and the closest common ancestor. If you have gotten this far, please consult OCGA sec. 53-2-1(b)(8). You may also need the assistance of a Georgia probate attorney. This information is also available in the form of a flow chart.
SOURCE: Athens-Clarke County.
In the state of Georgia, it’s not legally required for you to hire a probate lawyer after the passing of a loved one, but that doesn’t mean it’s not a good idea. For one thing, a Cobb County probate attorney will have a lot of insight into the process, which is something most folks just don’t have. After all, the probate lawyer works with probate cases all the time, is up-to-date on the most current laws, and has a pretty good idea of how to streamline the process as much as possible.
Hiring a Marietta probate lawyer is a good idea for another reason, too: If you do something wrong in the proceedings, the liability is on you. Considering all the complicated paperwork, financial responsibilities and time-sensitive deadlines, a lot of folks just don’t want to take on that kind of responsibility. Additionally, the person in charge of an estate (the Executor) is often dealing with his or her own grief and doesn’t want the additional stress of the job.
That said, plenty of estates can go through probate without a lawyer. If all of the decedent’s assets can be transferred outside of probate, then a probate lawyer wouldn’t be necessary. Cases like that might include assets that are held in joint tenancy, or those that have a named beneficiary, such as an insurance policy or retirement account.
It’s up to the individual in charge to determine if or when professional advice is needed. Some circumstances where this might happen could include:
- Family members threatening to contest a will
- Business dealings that weren’t complete when the decedent passed away
- The need for a guardian for a minor or disabled adult
- A shortfall of assets to cover debts owed by the estate
- There are complications with the taxes
- Assets were not properly owned by an existing trust
If the situation isn’t overly complex, you may only need the Marietta probate attorney to consult with you or review a few documents. A couple of hours of the attorney’s time might be all you need to ensure that you’ve got everything in proper order. On the other hand, if things start looking particularly complicated, it’s a good idea to gather up all your materials and sit down with an experienced probate lawyer in Cobb County for your own protection and your family’s peace of mind.
If you’d like to give your loved ones and yourself the gift of peace of mind, please call Steve at 770-425-6060 or email him at email@example.com.
For additional information on filing probate in Georgia, click here for Seven Steps to Handling Your Loved One’s Estate.