Cobb County Probate Lawyer: Issues to Consider with an Out-of-State Probate

Cobb County Probate Lawyer: Issues to Consider with an Out-of-State Probate

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 steve@georgiaestateplan.com to set up a consultation.

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.

Do You Need a Cobb County Probate Attorney?

Do You Need a Cobb County Probate Attorney?

Maze of probate

 

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 steve@georgiaestateplan.com.

For additional information on filing probate in Georgia, click here for Seven Steps to Handling Your Loved One’s Estate.

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