Do You Need a Cobb County Probate Lawyer?

Do You Need a Cobb County Probate Lawyer?

Image courtesy of Stuart Miles at FreeDigitalPhotos.net

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.

Rules of Inheritance in Georgia Probate Cases

Georgia Probate Lawyer

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.

About Probate Courts in Georgia

About Probate Courts in Georgia

gavel will

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
Suite 340
Canton,  GA   30114
Phone: 678 -493- 6160
Fax:  678-493-6170
View Website

Probate court of Cobb County

Kelli Wolk, Chief Judge
32 Waddell Street
Marietta, GA 30090
(770) 528-1900
(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
Fax:  404-730-7998

View Website

A Checklist of What To Do When A Loved One Dies

A Checklist of What To Do When A Loved One Dies

rose on grave

 

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

Working with a Probate Attorney in Cobb County to Understand the Steps of the Process

Working with a Probate Attorney in Cobb County to Understand the Steps of the Process

Cobb County GA probate attorney

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:

  1. The validation of the will. The will needs to be proven valid and filed at the country probate court.
  2. 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.
  3. 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.
  4. 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.
  5. 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.