Georgia Probate: How to Avoid It with Guided Estate Planning

When someone dies in Georgia, the Georgia probate process is essential. It helps divide their belongings, especially if they don’t have trust. Probate can seem lengthy and costly. However, Georgia’s probate system is simpler and cheaper than many other states.

Suppose you manage an estate in Georgia, especially with properties like rental homes. In that case, it’s essential to understand your options for avoiding probate and how to manage your loved one’s estate best.

In this article, we will examine the probate process in Georgia, share tips on how to avoid it and provide real-life examples.

What Is Probate in Georgia?

The legal process of probate administers and distributes a deceased person’s estate. The probate court ensures that the deceased person’s debts are paid and helps distribute the leftover assets to the right people. Even if a will exists in Georgia, it must be filed with the probate court. This allows interested parties to read it or challenge it if necessary.

Avoiding Probate in Georgia

While a will is essential in guiding the division of assets, it does not avoid probate. However, some strategies can help you avoid the probate process altogether:

1. Trusts: Creating a revocable living trust is one of the most effective ways to avoid probate in Georgia. When assets, like real estate or bank accounts, are transferred into a trust, they no longer need to go through the probate process. The trust becomes the legal owner of those assets, and after death, the successor trustee distributes the assets directly to the beneficiaries.
2. Transfer on Death (TOD) Deeds: As of July 1, 2023, Georgia now allows Transfer on Death (TOD) deeds for real estate. This type of deed allows property to pass directly to a named beneficiary upon death, bypassing probate entirely. The property owner retains full control during their lifetime and can revoke or change the deed at any time.
3. Joint Ownership: Property that is jointly owned with rights of survivorship will automatically pass to the surviving owner upon death, avoiding probate. However, if the deed does not specifically state joint tenancy with rights of survivorship, the property may still be subject to probate.
4. Beneficiary Designations: Many assets, such as bank accounts or stocks, allow for beneficiary designations. Accounts with a named beneficiary, like a payable-on-death (POD) bank account or stock held with a transfer-on-death designation, will pass directly to the beneficiary without going through probate.

Case Example: Managing a Parent’s Estate in Georgia

Here’s a real-life scenario to illustrate the importance of understanding probate and how to manage an estate in Georgia:

Scenario:

• A mother owns a rental property in Georgia, which provides income to cover her rent in an assisted living facility.
• She has one child (the sole beneficiary) and a will that outlines her wishes.
• Her assets include the rental property, one bank account (which the child is listed on), and a small amount of stock where the child is the beneficiary.

Issues to Consider:

• Will vs. Trust: While the mother has a will, which will guide the division of assets, the will itself will not avoid probate. The rental property would still need to go through probate unless it is transferred into a trust or a TOD deed is used.
• Bank Accounts: Since the child is listed on the bank account, it will pass directly to them upon the mother’s death without going through probate. This is an example of using beneficiary designations to avoid probate.
• Stocks: As the child is the beneficiary of the stock held in Computershare, this asset will also bypass probate and go directly to the child.
• The Rental Property: To avoid probate for the rental property, the mother could either transfer it into a revocable living trust or utilize a TOD deed under the new law.

Steps to Take:

In this case, if avoiding probate is a priority, the mother would need to meet with an estate planning attorney in Georgia. This attorney could help her decide whether to:

• Create a trust and transfer the rental property into the trust.
• Use a TOD deed to name the child as the beneficiary of the property, allowing it to transfer automatically upon death.

Finding the Right Lawyer:

The type of lawyer needed to address these issues is an estate planning attorney or a trust and estate attorney. While searching for an attorney, it’s important to consider whether the lawyer works on a flat-fee basis or hourly. Some clients prefer flat-fee arrangements for estate planning services, as they provide more predictable costs. The Atlanta Bar Association offers a referral service for estate planning attorneys, which can be a helpful resource when looking for professionals in the area.

Common Misconceptions About Georgia Probate

Misconception 1: “Probate in Georgia is Expensive”

Many believe that probate is always a costly process. However, in Georgia, probate can be relatively inexpensive compared to other states. Filing fees and publication costs typically run around $250, and while it’s often advisable to hire an attorney, it is not legally required in Georgia for straightforward estates.

Misconception 2: “Wills Avoid Probate”

This is one of the most common misunderstandings in estate planning. A will ensures your wishes are followed, but it does not avoid probate. Only by using tools like trusts or TOD deeds can you bypass probate entirely.

Misconception 3: “You Always Need a Lawyer for Probate”

While having a lawyer is advisable for complex estates, Georgia does not require one for simple estates. Executors can handle many probate tasks themselves, especially if they are the sole beneficiary and the estate is relatively simple. In cases where only minimal assistance is needed, such as drafting a deed, you may only need a lawyer for discreet tasks rather than full probate administration.

Expert Insights: Handling Estate Planning in Georgia

The Role of the Executor

If a person dies without a trust, the court will appoint an executor (often named in the will) to oversee the probate process. The executor’s responsibilities include:

• Filing the will with the probate court.
• Identifying all assets and debts.
• Paying off debts and taxes.
• Distributing the remaining assets to the beneficiaries.

Avoiding Probate with Small Estates

If your loved one’s estate is small, you might be able to avoid full probate through the use of a Small Estate Affidavit. This easier process is for estates with few assets. It lets the executor share assets without formal probate.

Homestead Rights in Georgia

The surviving spouse may have homestead rights to the family home, allowing them to live there for the rest of their life. If this applies to your family, it’s essential to consult with an attorney to understand the legal implications of these rights to the probate process.

Conclusion

Georgia probate doesn’t have to be a complicated or expensive process. However, there are strategies to avoid it altogether if that is your goal. Setting up a revocable living trust, utilizing the new TOD deed option, or making use of beneficiary designations are all ways to bypass probate. If your loved one’s estate is relatively simple, Georgia’s probate process is relatively quick and affordable, but it’s always wise to consult with an estate planning attorney to ensure your plan is tailored to your needs.

If you manage a loved one’s estate in Georgia, take time to understand the available tools and consult a local expert to create a smooth transition for your family.

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