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Frequently Asked Questions
Below are some of the questions we hear most often when potential clients reach out to us. Hopefully these help answer your immediate concerns, but if you find you still have questions, or for something not addressed here, please schedule a free 15 minute consultation by clicking the button below.
Everyone over the age of 18 should have an estate plan in place; if you don’t put a plan in place, the government has one for you - it just may not be one that you like.
If you die without having estate planning documentation in place, your family will likely have to go through the Probate process (a lengthy, expensive, public process that takes place in the courts - more about Probate below). Your assets will be frozen throughout that lengthy process, which may make things difficult for anyone that is dependent on you. If you have minor children, the court will determine who should get custody of your children without knowing who you would have wanted to raise them. Once all debts are paid, the court will distribute your assets to your heirs according to state law. This may or may not be the distribution that you would want, and if you have minor children, this will likely result in them receiving their full inheritance outright when they turn 18 (without any restrictions around how that money is spent).
If you are hospitalized and become incapacitated without having estate planning documentation in place, your family may have to go through an expensive and public court process called conservatorship. Your family would have to petition the court to have someone assigned to act on your behalf, your frailties would be made public, and the person assigned by the court may or may not be the person you would have selected. That person would then assist with managing your financial affairs or advocating for your health care decisions while you are incapacitated. To have the conservatorship removed would also involve the courts and if there is conflict as to whether the conservatorship should be removed, this could be a lengthy and expensive process that is out of your control.
If this isn’t your desired outcome, you can change all of this with proper estate planning.
What is Probate?
Probate is the legal proceeding that is used to distribute someone’s assets upon their death. The court overseeing the probate process makes sure that any outstanding debts are paid and that assets are distributed according to the will (if one was in place), or by state law (if there was no will).
The court appoints either an executor (named in the will) or an administrator (if there is no will) to administer the process of probate. This involves collecting the assets of the person that has died, conducting asset valuations, posting legal notices so that any possible creditors can come forward, scheduling court hearings, paying any liabilities remaining on the person's estate, filing federal and state tax returns and paying any tax due, and then distributing the remaining assets to beneficiaries.
What estates are subject to probate?
In Georgia, most estates valued at over $10,000 are subject to probate.
The value of your estate for probate purposes is based on the gross value, so if someone owns real estate with a fair market value of $500k and there is a $400k loan on the property, the value of the real estate for probate purposes is $500k (even though they only had $100k of equity in the property). This is important because the fees paid for Probate are based on this gross value.
How long does the probate process take?
The probate process takes 12-18 months in the State of Georgia. Assets owned at death will be frozen until a court grants an executor permission to make distributions - the courts will want to make sure that creditors get paid.
How much does Probate cost?
Georgia estate law mandates a 2.5% commission of all money brought into the estate and 2.5% percent of all money paid or distributed out of an estate. This are just the fees that go to the executor of the estate.
In addition to the statutory fees that go to the executor and the attorney, there are also costs associated with the legal notice requirements and court costs. If real estate is owned out of state, then a concurrent probate process will need to be handled in that state as well, requiring a separate attorney, separate fees and court costs.
When you add up the fees, in Georgia, an uncontested probate could range from $1500 - $3000. If anyone contests the process, the cost could range from $3000 to well over $30,000, depending on the size of the estate.
Is Probate public?
Yes, Probate is a public process. Anyone can see the total assets that the individual had at the time of their death, as well as all of their creditors and beneficiaries. The court documents that are filed are public and the hearings are open to the public. If you prefer to keep your financial situation private, your estate plan can be designed to ensure privacy.
How can Probate be avoided?
Georgia allows probate to be skipped even in cases where there is no Will, provided the following:
Every inheritor can agree on how to divide the assets
There are no outstanding debts
Creditors do not have an issue with there being no probate
Additionally, assets owned in Joint Tenancy with Rights to Survivorship are not probated until the death of the surviving spouse. Assets that have a named beneficiary - for example retirement accounts, life insurance policies, and Payable on Death (POD) accounts - can also bypass the process under certain circumstances.
Finally, probate can be avoided through the use of estate planning tools such as a Revocable Living Trust. A Trust can be tailored to suit your family’s particular needs and can keep your family out of court and out of conflict. Administering a trust is a private process that does not involve going to court, and it eliminates the need to pay statutory fees out of the estate.
Isn’t having a will in place enough?
In some circumstances a simple will may be enough to indicate who would administer your estate if you died, and who should get your assets upon your death. In certain circumstances a will is an appropriate document to have in place, but there are some important limitations. A will does not handle situations related to incapacity and a will does not avoid Probate.
If you were incapacitated, who would continue to pay your bills? Who would be responsible for your health care decisions if you were hospitalized and could not make those decisions for yourself? If a will-based plan is appropriate for your situation, as part of that plan I will include the legal documentation necessary to ensure that the person that you want you want stepping in to assist with your finances, and the person you want making your medical decisions, are given the proper authority without involving the court system.
If you were to die, what type of process would your family have to go through to be able to take over your assets? Do you want them to have to go to a lengthy and expensive court process?
Proper estate planning addresses all of these issues and keeps your family out of court and out of conflict.
What is the advantage of having a trust over a will?
Avoids Probate, a lengthy court process (this can take 12-18 months, during which time, assets are frozen)
Elimination of the significant costs and fees associated with the Probate process. These fees are set by law and are based on the gross estate that you leave behind.
Ensures private handling of your estate (as opposed to a public court process). If you would prefer that your financial matters be kept private, a trust-based plan can accomplish that.
Allows for increased flexibility in managing assets (particularly useful if the beneficiaries are young or are not experienced with handling money), reducing the likelihood that the wealth will be squandered or used imprudently. For example, if you have minor children, would you want them to receive outright distributions of their full inheritance at the age of 18? You may prefer to limit how their inheritance is used, such as for education, or structure a plan for them that involves distributions at certain ages (such as 25, 30, and 35 years old), or upon certain milestones, such as graduating from college.
A trust-based plan allows for creditor protection. If there is any concern around the inheritance that your beneficiaries are to receive being taken away by their creditors, a trust-based plan will be more appropriate to safeguard those assets. A trust can be designed so that judgment creditors of your beneficiaries cannot access the funds in the trust.
Trusts can be used to minimize taxes and preserve family wealth.
Why should I work with you, when I can get an estate plan online for almost free?
For (very) few people, a Do It Yourself estate plan may make sense. However. In my probate work, I see all too often the trouble that families go through when plans fail. And most plans that were not done correctly by an experienced attorney do fail. Let me put it this way: probate clients often pay at least twice as much to sort through a messy estate than estate planning clients pay to get it done the right way.
How do I get started?
Take a look at the services that I offer and schedule a Family Wealth Planning Session.
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