Probate attorneys in Marietta are well aware of how difficult the process can be for families and friends who are grieving, for those who value privacy, and even for those who need to get an estate closed to pay off debts and take care of other obligations. Day in and day out probate attorneys hear about the downsides of probate.
What Is Probate
Probate is a process used by courts in Georgia, as well as across the country, to settle the affairs of a deceased person. This legal process ensures that the estate fills its obligations and that its assets are distributed fairly according to the law. Technically, “probate” refers to the settling of an estate according to a will, but when someone dies intestate (without a will), most people still refer to the process that follows as “probate.” There may be a few slight differences between the processes, but they are very, very similar.
Why Do People Avoid Probate?
There are a few reasons that people want to avoid the probate process, and they’re good reasons most of the time. Examples include:
- It can take a long time.
- It can cost a lot.
- Everything is in public records.
Individuals who engage in solid estate planning before death are often able to take care of the estate better than those who die intestate, or even those who only use a will. For example, a probate attorney in Cobb County GA can help determine when a certain kind of trust could be used to avoid paying more taxes than necessary after death.
When Is Probate a Good Thing?
While many people have been conditioned to think that probate is a terrible thing, probate lawyers in Marietta see plenty of cases where it is quite beneficial. For example, it may be quite difficult to track down all the creditors owed by an estate. By following the legal procedures, there is eventually a cut-off date for any unascertained creditors. This keeps creditors from coming back months or even years later and demanding payment.
Probate can also be helpful in cases where beneficiaries are receiving disproportionate inheritances. It provides an opportunity for parties to make their claims and legally resolve any disputes. Probate lawyers in Marietta GA often see how having this type of forum can lessen tempers while making sure that all parties can be heard before acting on legal precedent.
So, while you will generally hear about why you want avoid probate, it’s good to remember that it certainly has its place in the judicial system. Should you find yourself facing probate, our firm’s probate attorneys in Marietta Georgia are skilled at helping move the estate through the process as efficiently as possible.
If you’re ready to get started with the probate process after the passing of a loved one, please contact our experienced Cobb County probate attorneys at (770) 425-6060 or contact us here to schedule a complimentary case review.
Probate lawyers in Marietta GA work with their clients to put together plans that clearly explain what the client wants. At least, that’s the hope. When it comes to the administration of a will, however, there are several instances where a will is contested, often by an adult child of the decedent.
One of the biggest problems that leads to a will being contested has to do with communication within the family. This can relate to parents not communicating their wishes to their children and relying on a will to do it for them, or to siblings not communicating with one another during the will administration so that everyone has a different perspective on what is going on.
There are several reasons a will can be contested, and there are also ways that our Cobb County Georgia probate lawyers help families and individuals proactively avoid the expense and drama.
Unequal Distribution Among Beneficiaries
When one sibling receives less than another (either in reality or in perception), it can trigger a desire to contest the will. Really, though, there are plenty of good reasons for an unequal distribution. Perhaps one child acted as the parent’s caretaker, and a bigger portion of the estate is being left to him or her as compensation. Sometimes a business is left to one or more siblings, with a larger portion of the personal estate left to another. It’s almost impossible to make these things “even,” and some siblings may choose to squabble about it.
In many cases, these issues can be avoided or mitigated by making sure to explain in the will the reason for decisions that are being made. That way, not only is there an explanation that can help stop a will from being contested, there is also recourse for the courts to rule in favor of the original intentions.
A commonly-cited reason for stopping the will administration process by contesting the will is “diminished capacity.” In these cases, someone with a stake in the outcome of the will tells the courts that he or she believes that the deceased wasn’t capable of making good decisions due to some sort of mental impairment. Even if you are perfectly reasonable and sound at the time that you make changes to your will, that doesn’t mean that someone can’t come back after your death and suggest that you weren’t.
In order to help discourage this from happening during the Cobb County probate court process, it may be helpful to put your reasons for changes directly into the will. Again, this comes back to communication. If you communicate why you are making changes by writing it into the will, you can help avoid some major issues. Additionally, you may even wish to have your doctor evaluate you at the time to ensure that you are not suffering from diminished capacity.
Disinheritance of one beneficiary can certainly trigger a lawsuit against the estate. While you may have perfectly good reasons for the disinheritance, that doesn’t mean that the disinherited person will agree. Sometimes just contesting the will on these grounds is enough to get the other heirs to provide a financial settlement in order to avoid a drawn-out and expensive court process.
As mentioned above, communication is key. Describe in the will why you have made the decisions you have regarding disinheriting someone. Cover your bases when it comes to diminished capacity by speaking with your doctor. You may also want to discuss your decision with a third party (perhaps your attorney) who will be able to bring that understanding to the situation when it comes time for the actual will administration.
By Steve Worrall, Cobb County Probate Lawyer
Avoiding probate in Cobb County, Georgia, is a very real concern for people who want to make sure certain assets such as stocks, bonds, brokerage and bank accounts automatically pass to their heirs upon their death.
In such a scenario, Transfer on Death Agreements (also known as TOD’s) can be a very useful and convenient estate planning tool in making sure your loved ones are financially taken care of in your absence.
Essentially, Transfer on Death Agreements allow you to pass ownership of your accounts directly to a beneficiary of your choosing when death occurs. Without such designations, each account would have to go through the probate court before it can be distributed to your desired heirs.
Yet you may be wondering, “What’s wrong with going through Cobb County probate and why bother with tools such as TOD’s to avoid it?”
Well for starters, many people wish to avoid involvement with the Cobb County Probate Court simply because it could take a year or longer before the funds actually reach your desired beneficiaries. This is problematic for families who desperately need the assets to pay for burial expenses, outstanding medical bills, mortgage payments, and general living expenses.
Not to mention, the value of your assets passing through probate may be reduced by as much as 5%, as mandatory attorney and court fees will be taken directly out of the estate.
Finally, one of the greatest drawbacks of probate is that the value of your assets will be made public for the whole world to see. This aspect of Cobb County probate is especially troublesome for people who do not want every scam-artist or busybody in town knowing what their heirs stand to inherit upon their passing.
Yet it is important to remember that while TOD agreements will help you avoid probate on some of your assets, it won’t help you avoid probate on the rest of your personal effects such as jewelry, collections, family heirlooms, the contents of your home, etc.
Nor will TOD agreements help you minimize the amount of estate taxes your family might have to pay upon your passing or protect your assets if incapacity and not death occurs.
That’s why it’s so important you speak with a Cobb County probate attorney before making any decisions about your financial or legal affairs. While a TOD is indeed a useful estate planning tool that can help you avoid probate, it may not be the best – or the only tool your family needs to ensure they are protected should something unexpectedly happen to you.
Fortunately, we’ve made the process of meeting with a Cobb County probate lawyer easier than ever by offering free Georgia Family Treasures Planning Session (normally $750) to anyone that takes the time to read this informational article. However, these sessions are limited to 10 per month, so call 770-425-6060 to reserve your spot today.