Probate

What is Probate?

Technically, probate is the official court proceeding that determines the validity and authenticity of a Will.

More generally, probate is the process of gathering the assets of a deceased person, paying any outstanding debts, last illness expenses and probate costs, and then distributing the remaining money and property to the appropriate persons in accordance with the deceased’s Will or in accordance with Georgia law, if there is no Will.

Settlement of an estate and distribution of the property is an important process to ensure that real estate, family heirlooms, furniture and furnishings, automobiles, stocks and bonds, cash and other property pass to the proper persons according to the law.

What types of Probate services do you provide?

We provide comprehensive services to assist you with all legal aspects of settling an estate.

First, we meet with you to go over the basic information about the deceased, and whether or not there is a Will. We make sure that all your questions are answered, and we discuss with you the legal options available under the circumstances. Then we prepare the appropriate documents to be filed in the Probate Court.

Then, if you are going to be the Executor or Administrator of the estate, we accompany you to the Probate Court to file the probate petition.

Once you are appointed by the court as Executor or Administrator, we assist you with legal matters as you go through the process of locating the decedent’s assets, paying debts, selling property, transferring title to real estate, and distributing property in accordance with the Will, or in accordance with Georgia law, if there is no Will.

Finally, we assist you with formal closing of the estate, and filing of a Petition for Discharge with the Probate Court, to relieve you of your legal duties and liabilities as Executor or Administrator.

Should I be afraid of Probate?

That depends. If you have a well-written Will and there are no disputes among the family or heirs, then the court process may not be a problem. The time and expense involved in the legal probate process in Georgia is lower than in some other states. Still, it is a court process, and it generally takes at least a year to complete the settlement of most estates. Of course, we work with you throughout this process.

The probate process can be much more of a problem if the deceased died without a Will, if the terms of the Will are unclear or ambiguous, if there are any disputes among the family or heirs, or if there may be a Will contest or lawsuit. These situations can be quite expensive, and these types of cases often lead to the frightening stories about probate that you may have heard.

To help avoid these problems, everyone should have a current, professionally-prepared Will. Do-it-yourself Wills may save money at the time, but often end up costing substantially more in legal fees after a person has died.

Can Probate be avoided?

Yes. we can prepare a Revocable Living Trust for you. By setting up a Revocable Living Trust and placing all of your property in the Trust, you can avoid the costs and potential delays of the formal probate process.

Will Contests

Do You Handle Will Contests?

Yes. If someone close to you has died, and you believe that their Will does not reflect their true last wishes, we can assist you with pursuing your claim.

What Are The Grounds For A Will Contest?

In general, a Will may not be valid if there is evidence of :

• Lack of Mental Competency – the deceased was not competent on the date the Will was signed
• Undue Influence – someone controlled the wishes of the deceased
• Forgery – the signature of the deceased was forged
• Fraud – the Will was procured through fraudulent means

Unfortunately, we do see cases where relatives, friends or care-givers take advantage of the elderly or infirm by having Wills signed which favor the wrongdoers. We can assist you in evaluating your case, if you believe that this has happened in your family.

Is It Necessary to Go to Court to Challenge a Will?

Yes. Unless the other party agrees to a settlement very quickly, it is usually necessary to file a formal objection to probate of the Will, which in Georgia is called a Caveat.

After the Caveat is filed with the Probate Court, the case is generally handled like other lawsuits, with a period for discovery and then a trial, if no reasonable settlement can be reached.

What If Someone Died Without a Will?

Then Georgia law controls who receives their property, including their real estate, and their personal property, including furniture, furnishings, jewelry and automobiles. This is usually handled under the supervision of the Probate Court, after filing of a Petition for Letters of Administration.

If the person appointed as Administrator of the estate has not distributed the property of the estate in accordance with the law, then it may be possible to file a claim against the Administrator or others involved in the improper conduct.

What If The Deceased Had All His Property in a Living Trust?

In this case, the family may not be required to make any filing with the Probate Court. So, you may not receive any notice that the Trust property is being distributed.

If you believe that a Living Trust was set up improperly and does not reflect the true wishes of your deceased loved one, it will be important to act quickly to preserve the property of the Trust. When dealing with Trusts, this may require filing of a lawsuit or other action in Superior Court, rather than in Probate Court.

Do You See Many Disputes Over Estate Property?

Yes. Unfortunately, we see many more such cases than in years past.

This is one of the reasons that everyone should have a current, professionally prepared Will (or Living Trust) and Financial Power of Attorney in place, so that trustworthy persons can manage their property during any period of incapacity, and then settle the estate properly and legally after death. Failure to plan ahead often leads to trouble when a Will or Power of Attorney is signed after a person is seriously ill and not thinking clearly.

If are concerned about the Will or Trust of a loved one who has recently passed away, please give us a call to discuss your legal options.