When you walk into an Atlanta estate planning lawyer’s office, you are going to hear some terms that are either completely new to you or that sound like something out of an old movie. It’s a good idea to have some understanding of these terms ahead of time so you don’t spend time doing anything other than what you hired the attorney to do.
That said, if you ever have any questions regarding terminology that you were unable to answer on your own, be sure to ask your Atlanta estate planning attorney so you absolutely understand the choices you have and the decisions you’re making.
- Administration: This is the term used to refer to the process of settling an estate and includes a number of tasks ranging from doing an inventory of assets to distributing them according to the will or probate court’s instructions.
- Assets: Anything owned or controlled by a person that can be used to produce value. This might include, but is not limited to, real estate, vehicles, investments, life insurance, retirement accounts, and personal property.
- Beneficiary: A person named in an insurance policy, retirement account, will, trust or other legal document to receive ownership of the deceased’s assets.
- Bequest: A gift designated to go to a particular individual or group, usually designated in a will.
- Death Tax: A commonly-used term to refer to taxes imposed by the federal government that must be paid out of an estate. Also referred to as the Estate Tax.
- Guardian: The person appointed to get custody of a minor child and/or the child’s property should the parents be killed or become incapacitated. (The term “Conservator” is used to refer to those named to provide for others who are not minors.)
- Heir: Someone who is entitled to inherit from the deceased.
- Probate: The process of closing an estate through the courts that begins with the validation of the will and continues until the assets have been distributed.
- Trust: A method for legally holding and managing property for the benefit of another.
- Will: A legal document that provides instructions for how a person’s property should be distributed after his or her death.
It’s worth noting that estate planning terms DO change over time. What may have once been called an “administrator” or “executor” may now be the “personal representative,” for example. Again, if you have any questions about the terminology being used, don’t hesitate to ask your Atlanta estate planning lawyer for clarification for how terms are used in our state.
Image courtesy of Stuart Miles / FreeDigitalPhotos.net
Probate Courts in Georgia are courts of limited but exclusive jurisdiction over (a) the probate of wills and the administration of estates of deceased persons, (b) the appointment of guardians of the person and property of incapacitated adults, (c) the appointment of guardians of the property of minors, (d) the appointment, in certain circumstances, of guardians of the person of minors, and (e) the commitment for involuntary treatment of persons addicted to drugs or alcohol and/or suffering from mental illness. Probate Courts also issue certain licenses and permits and perform certain administrative duties. In many counties, the Probate Court exercises limited criminal jurisdiction (traffic cases, game and fish violations, etc.) Some Probate Judges also serve as the Elections Superintendent and/or Vital Records Custodian for their counties. In certain counties, the Probate Judge is also the Magistrate Court Judge.
The Probate Court of Cobb County is an “Article 6 Probate Court” [Title 15, Chapter 9, Article 6, Official Code of Georgia Annotated] and has an enhanced or expanded jurisdiction. Under Article 6, which applies in counties having a population of 96,000 or more, the Probate Judge must be a licensed attorney with experience and qualifications equal to those for serving in the Superior Courts of Georgia. Article 6 Probate Courts have certain concurrent jurisdiction with the Superior Courts and may conduct jury trials in issues properly before the court. Appeals from Article 6 Probate Courts are directly to the Court of Appeals or the Supreme Court, as appropriate.
Many of the procedures filed in the Probate Courts in Georgia are by use of the Georgia Probate Court Standard Forms. Not all proceedings have a standard form applicable to them. All Georgia Probate Court Standard Forms are available in each Probate Court. These forms are also available at, may be downloaded from, and may be compiled on the Georgia Probate Court On-Line System.
Information about metro Atlanta probate courts:
Probate Court of Cherokee County
Judge B. Keith Wood
90 North Street
Canton, GA 30114
Phone: 678 -493- 6160
Probate court of Cobb County
Kelli Wolk, Chief Judge
32 Waddell Street
Marietta, GA 30090
(770) 528-1996 fax
View Web site
Clerk of Court (770) 528-1900
Estates Division (770) 528-1900
Firearms License ( 770) 528-1922
Marriage License (770) 528-1921
Probate Court of Fulton County
Judge Pinkie Toomer,
T2705 Justice Center Tower
185 Central Avenue, SW
Atlanta, GA 30303
Phone: 404 -612- 4640
When a loved one passes away, it is an understandably stressful time. It can be even more stressful and/or traumatic trying to remember all of the details that must be taken care of related to a person’s death. If you are in charge of handling the affairs of the decedent (the person who has died), here is a checklist of some of the more important considerations:
Place of Death. If the individual dies in a hospital or hospice, the medical personnel will take the lead on “next steps” although they will want to know which mortuary or funeral home should be called at the appropriate time. If the individual dies at home, call the paramedics or the police so that the proper pronouncement of death can be made.
Organ Donation/Anatomical Gifts. If the deceased has consented to be an organ donor or the family is willing to consent to organ donation and the individual dies at home, the paramedics should be called immediately and be sure to let the dispatcher know that the person is a potential organ donor as time is of the essence. If consent has been given for the body of the deceased to be an anatomical gift, follow the instructions provided by the institution or organization receiving the gift.
Notify Immediate Family. As soon as possible and practical, notify immediate family and friends about the death of the loved one. This will assist them in making arrangements quickly to be with you during this time. If a family member or close friend can be designated to make these contacts, this could relieve you of a great deal of stress. In order to assist them, have prepared an accurate listing of the names, addresses and telephone numbers of family members and/or friends to be notified in the event of such emergencies.
There are a number of tasks with which family and friends can lend a hand, such as:
- answering the phone
- collecting mail
- caring for pets
- locating important items such as keys, insurance policies, claims forms, addresses for magazine subscriptions, etc.
- staying at the home during the wake, funeral, and/or memorial services to guard against break-ins that commonly occur during that time
- organizing food for family and friends after the services
Notify the Clergy. Contact the deceased’s Pastor, Rabbi, Priest or other designated religious leader if there is one in order to facilitate counseling for family members and members of the deceased’s congregation, synagogue or parish. They will also be involved in making arrangements for any final religious services.
Funeral Home/Mortuary and Cemetery/Mausoleum. If no arrangements have been previously made, contact the funeral home or mortuary of your choice to carry out the final preparations and/or burial instructions. Any advance preparation in this area alleviates a lot of stress during an already stressful period. Most funeral homes and/or mortuaries are happy to talk with individuals to provide helpful pre-needs information and arrangements. Someone will have to be authorized to make the decisions concerning the disposition of the remains of the deceased. A final resting place should have already been secured and the proper person will need to be notified of the date of interment as soon as a date is set.
Obtain Death Certificate. A death certificate must be completed and signed by either an attending physician, the medical examiner/county coroner or in the case of persons dying in a hospice program a registered professional nurse employed by the hospice. The death certificate is filed with a local registrar and transmitted to the vital records registration system for recording in the state’s official records. Certified copies of the death certificate can be obtained after the death certificate has been filed with the local registrar. Certified copies will have printed upon them the following language:
“This is an exact copy of the death certificate received for filing in County.”
The certified copy must display an official seal.
Copies of the Death Certificate. Once the death certificate is available, copies need to be sent to all insurance companies, in order to receive the proceeds from any insurance policies.
Notifying Employer, Social Security. Notify the employer of the deceased so that the proper paperwork can be completed. This may affect payroll and benefits, as well as the general morale and work schedule of the deceased’s co-workers. Also notify the local office of the Social Security Administration and any other income sources immediately. Any benefits received after the date of death will need to be returned to Social Security. The surviving family member or estate is entitled to a one-time $255 death benefit from Social Security. Pensions, annuities and other income sources will have different rules. Check the plan or contact the administrator of those plans for further details.
Notifying the Guardian/Agent. If there is a guardianship, a power of attorney or a durable power of attorney for healthcare, those persons need to be notified that their responsibilities are at an end.
Bank Accounts. If there are bank accounts on which someone is a “surviving owner”, (the account may read “POD” for payable upon death or joint owners with “ROS”, for right of survivorship) a death certificate needs to be provided to the bank so that the surviving owner can now take ownership. Otherwise, access to the accounts may be blocked until someone is appointed as an official agent on behalf of the estate.
Wills. If there is a Will, when the person dies, the law requires that it be filed (the law does not require that it be probated) with the Probate Court in the County where the decedent lived. The Clerk will provide the executor or executrix of the Will with the necessary paperwork. Expenses of the last illness and funeral should be paid from the estate before any additional disbursements are made. All remaining assets and properties can be disbursed through the probate process.
When there is no Will. If there is no Will, and an administration of the estate is desired, this is also done in the County Probate Court. Expenses of the last illness and funeral or final arrangements should be paid from the estate before any additional disbursements are made. All remaining assets and properties can be disbursed through the administration of the estate.
Creditors. Letters should be sent to all creditors informing them of the persons death. If any life insurance coverage exists on open accounts to pay off the remaining balances, a copy of the death certificate will be required. Do not agree to personally be responsible for paying the balances on any outstanding account. The estate is liable, not individual family members unless that family member was a named account holder, regardless of the insistence of the creditors. If nothing remains in the estate to pay off debts, then creditors should be so informed.
Utility Companies. Local utilities (telephone, gas, electricity, cable) should be notified only if someone else wants to be substituted on the accounts. Otherwise wait until you decide whether or not and when the utilities are to be discontinued. In any event, the utility bills must be paid in order to keep the utilities on.
Newspaper and Mail. The newspaper subscription will need to be discontinued if no one else resides at the home of the deceased and the Post Office may need to be contacted about a forwarding address for mail, if no one will be at the home to receive it.
Tax Refunds. Any Tax refunds that arrive after the decedent’s death will be a part of the estate and will have to be distributed according to the Will or the Administration process.
Taxes Owed. Any taxes owed will have to be paid out of the estate or voluntarily by a surviving family member.
Homestead Exemptions. Any homestead exemptions are generally going to be tied to the individual if that person was a senior or otherwise qualified for an exemption. The exemption may no longer be applicable unless the new homeowner meets the requirements.
Personal Property. Things like titles to automobiles, automobile insurance and house insurance will have to be changed eventually. Homeowner’s insurance policies should be reviewed carefully for instructions concerning coverage of unoccupied premises.
Out-of-State Property. If property is owned out-of-state, the Will should be probated or the estate Administrated in the state of residence first and the Letters Testamentary or Letters of Administration (they may be called something else in another state) used to handle the property in the other state.
No Property. If there was no property left in the decedent’s name and no other assets that need to be transferred, then there are probably very few estate matters to be handled. Georgia requires that a Will be filed with the Court if there is one, whether or not it is actually probated.
Right of Survivorship Property. If property or accounts were in the name of the decedent and another person as tenants “with the right of survivorship”, then ownership automatically passes to the survivor(s) without the need for probate or administration of the estate.
Disposing of Personal Items and Clothing. Although one of the most heartbreaking tasks when a loved one dies, as soon as emotionally possible, every effort should be made to dispose of those items which will no longer be used by the survivors. The timing of this is handled differently from person to person. If too soon, it may prevent survivors from having adequate time to grieve, while if it takes too long, it may seriously delay the ending of the grieving process, acting as a very painful and constant reminder of the person’s death. Only a few items should be retained as mementos.
No items should be moved, sold, given away or otherwise disposed of if they have been identified in the person’s Will as items to be distributed as a part of the estate. Only the legal beneficiary of those items is entitled to make the decision as to their disposal.
Documents to locate. There are some documents that may be needed or at least helpful in settling the estate of the deceased. These documents should be located and kept together in one place until they can be turned over to the person in charge of carrying out this part of the affairs of the deceased. Included in the list of documents to be sought:
- funeral and burial plans/contracts
- safe deposit rental agreement and keys
- trust agreements
- nuptial agreements/marriage licenses/prenuptial agreements/divorce papers
- life insurance policies or statements
- pension, IRA, retirement statements
- income tax returns for the past three years
- gift tax returns
- birth and death certificates
- military records and discharge papers
- budgets/bookkeeping records
- bank statements, checkbooks, check registers, certificates of deposits
- deeds, deeds of trust, mortgages and mortgage releases, title policies, leases
- motor vehicle titles
- stock and bond certificates and account statements
- unpaid bills, notes
- health/accident and sickness policies
- bankruptcy papers: filings and releases
This is certainly not intended to be an exhaustive list of every detail to which attention must be given nor does this alleviate the need to ask questions about topic areas that may not have been mentioned. It is an attempt to provide some initial guidance to those in the position of having responsibility for handling the affairs of a deceased loved one. These are just some of the more fundamental core items. The emotional issues will have to be dealt with and special care should be taken when a loved one dies leaving young survivors or elderly survivors. Support groups and counselors should be contacted at the initial signs of depression.
SOURCE: Georgia Department of Human Resources, Division of Aging Services
Even if someone has a will in place, it’s still quite likely that his or her estate will need to be overseen by a good probate attorney in Cobb County. These professionals understand the incredibly complex process that goes along with closing out someone’s estate after he or she has passed away. Those who have worked with an estate planning lawyer can sometimes avoid probate through the use of tools like revocable living trusts, but if you are in a situation where the estate in question needs to go through the legal process, it makes sense to get a qualified probate attorney on board.
One of the things the lawyer will do is to help you better understand the steps of the probate process in Georgia. Knowledge is power, and having a reasonable expectation of what to expect can make probate a little less intimidating.
While every situation is different, a typical probate process in Georgia will look something like this:
- The validation of the will. The will needs to be proven valid and filed at the country probate court.
- The court will appoint an executor. The will usually nominates someone for the position, but the executor will not have legal authority to take actions until approved by the court.
- An inventory is made of all the assets, as well as a determination if the estate is owed money by any other parties. At this time, a special checking account may be created to take care of the estate’s obligations.
- The outstanding debts of the decedent and the ongoing expenses of the estate will be identified and paid. These debts should be uncovered in the previous steps.
- The remaining property will be distributed to heirs based upon the wishes outlined in the will and according to the laws of Georgia, after approval by the court.
This is obviously a simplified look at what happens during the process, but even from this brief list, it is possible to see why it is so beneficial to have an experienced probate lawyer in Cobb County involved. He or she not only oversees the legal aspects of probate—filing paperwork and keeping things moving forward—but also guides the executor on what duties need to be fulfilled. Ideally, the probate process will take only a few months, but due to the time it takes to obtain court hearings and the built in waiting periods to ensure creditors are paid, this timeframe is typically stretched out to take a year. If any issues arise or there is disagreement among the heirs the timeframe is even longer. A probate lawyer will help to avoid as many pitfalls as possible so that the estate can be closed efficiently and in a timely manner.
Usually, a person isn’t even aware of what a probate lawyer does until he or she is in need of one, after a family member has died and help is needed immediately. But it’s a great idea to hire a probate lawyer before you actually “need” his or her services so things can go as smoothly as possible when it comes to taking an estate through the probate process.
The probate lawyer’s job is to assist families as an estate passes through the court system so it can be distributed properly. There are several steps that the court must go through to close an estate, and the attorney makes sure everything is started and followed through on, as these steps are being followed.
Some basics of probate include:
• Validating the will
• Creating an inventory of assets
• Getting appropriate appraisals for assets
• Creating a list of debts
• Paying debts
• Dispersing the remaining property according to the will
If there is no will, the estate is said to be “intestate,” and the court will have even more say in what becomes of the decedent’s property.
Not every estate needs a probate lawyer. Some families have placed their assets into trusts that don’t go through the probate process. Some wills are simple and easy to execute, such as where there are little to no debts and common property is left to a surviving spouse alone. In other cases, though, hiring a probate lawyer will simplify the process for everyone involved and will most likely save the estate a fair amount of money. That’s because the attorney can implement strategies to help lower the taxes that must be paid.
He or she can also become an objective outside party who can assist the executor of the will where family tensions run high. Along those same lines, if someone with a legal or financial interest in the estate wants to contest the will, it makes sense to have a probate attorney working to make sure the decedent’s wishes are carried out to the best of the court’s ability. Finally, it can be a good idea to involve a probate lawyer where an individual has a terminal illness. The attorney can help that person to get their affairs in order by drawing up a will and understanding first-hand what the person wants for the estate.
There are many tasks that the probate lawyer will perform for the estate such as:
• Filing documents with the court
• Creating lists of assets
• Placing legal notices in newspapers
• Contacting creditors
• Making sure taxes are paid on the estate
A good probate lawyer will keep current on relevant laws as they change and will work to help the clients and heirs follow all of the right procedures while doing their best to protect their interests. If we can assist you and your family, please call us at 770-425-6060.