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.
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.
Despite the best efforts of wills and trusts lawyers in Cobb County, Georgia, there are times when a will is challenged. There can be many reasons why this happens, and it is up to the courts to determine what is appropriate in these situations. Some of these include:
- The will wasn’t signed
- The person creating the will didn’t have the capacity to legally sign the will
- He or she was unduly influenced into signing it
- The will is fraudulent
- The person challenging the will feels that a different personal representative should be chosen
None of these reasons for challenging (or contesting) a will is to be taken lightly. In order to prove that the will is invalid, one of these reasons needs to be proven in a court of law. The idea of simply challenging a will because you don’t like the contents may seem reasonable; but if you can’t prove one of the above factors for invalidating it, you may very well be wasting your time and resources.
Cobb County Wills and Trusts Lawyers
If you do wish to challenge a will, you will want to take your concerns to a lawyer who has experience in Georgia wills and trusts administration. He or she will give you some insight into whether or not you have a case. Be sure to choose a reputable attorney, so that you don’t end up wasting your money on a no-win case.
The lawyer will help you determine if you are a person with “standing.” That means that you need to be someone who actually has a financial stake in the outcome of the will. Someone in that position would include a child who stands to receive considerably less than siblings (or who has been cut out altogether), a potential beneficiary who believes too much of the estate has been given to a third party (such as a charity), or someone who was included in an earlier will but finds that the new will treats him or her much more unfavorably.
Challenging the Will
In order to challenge a will, the person in question needs to file the contest with the Cobb County probate court, and there is a set time limit for doing so. Because estate law changes frequently, you should consult a Cobb County wills and trusts lawyer to be sure of what the current timeframe is. He or she will help you decide if you want to pursue the case and to file the appropriate paperwork with the courts.
After reviewing the will, the courts will determine if all or part of it should be considered invalid. If the whole document is found invalid, then the estate will be distributed according to the laws of Georgia probate, unless there is an earlier version of the will that the court finds to be valid. Keep in mind that these may not actually be more favorable than the original contents of the will and will take a considerable amount of money from the overall estate before it is dispersed.
Contact A Cobb County Will and Trust Attorney
If you have questions about how to contest a will in the greater Atlanta area, please feel free to contact our Cobb County will, trust and probate attorneys at 770-425-6060 to schedule a Georgia Family Treasures Planning Session at no charge with the mention of this article.
Image courtesy of Grant Cochrane at FreeDigitalPhotos.net