What Is Probate?
The definition of probate means to prove
a will. Having a will is important so the heirs and the courts know the final
wishes of the decedent/deceased and how they want their assets divided upon their
death. While M&T does help clients to prepare a will, we do not take cases
in probate court to settle the individual's estate after they have passed.
This blog will discuss insight into what
happens in probate court, how an estate is settled, and what happens when estate
planning is not done properly. Whether or not there is a will, probate can
affect anyone who has assets to distribute after their death. Proper planning
and preparation is essential to simplifying the process.
The Probate Process
In the probate court, a will is
presented to a judge for approval. Through the probate process, a deceased
person's estate is settled, meaning their outstanding debts are paid and the
remaining property is passed to their heirs or beneficiaries.
To begin the probate process, a petition
is filed with the probate court. If there is a will, the will is also filed
with the court. Having a will does not avoid probate, but it does help guide
the court on how the estate should be distributed.
The Main Purpose of a Will
There are three main reasons someone
would want to have a will. First and most recognized, a will determines who
inherits assets and property when someone dies. Second, the will names the
individual who should have the role of an executor in managing the estate and
carrying out the deceased person's wishes.
If the person died leaving minor
children, that individual may nominate the guardian they intend to care for the
minor children. Both the executor and guardian are important jobs and should be
chosen carefully.
Understanding Executor, Administrator, Beneficiaries, and Heirs
An executor is a person who was nominated in a will to settle the estate. An administrator is appointed by a court to manage the estate when someone dies with no will. Historically, there were differences, but today, the executor and administrator perform the same duties.
The executor or administrator has an
important role, because they have the authority to make final decisions
concerning how the estate will be settled. While some may believe that
disagreements should be settled through a vote of family members, the appointed
executor or administrator has the authority to make the final decision.
Beneficiaries inherit according to the will. If there is no will, heirs inherit property according to state intestacy law.
How to Avoid Common Probate Pitfalls
One of the most effective ways to
minimize the challenges of probate is by setting up financial accounts with
beneficiary designations. Options such as transfer on death (TOD) and pay on
death (POD) accounts allow assets to pass directly to the named beneficiary,
bypassing probate altogether.
It's also important to understand how
spousal rights work in Georgia. Even if a will disinherits a spouse, the law
provides a safeguard known as "Year's Support," which allows the surviving
spouse to claim a portion of the estate equal to one year of the couple's
standard of living.
Finally, knowing the difference between marital and separate property can help prevent confusion. Property owned jointly, such as a home or certain bank accounts, typically passes directly to the surviving spouse or co-owner and does not go through probate. Separate property, on the other hand, is subject to probate and distributed according to the will, or state law if no will exists.
What Assets Go Through Probate?
Assets that commonly go through probate
court include real property, personal property, and bank accounts without
beneficiary designations. However, assets like life insurance and retirement
accounts are not normally decided in probate court because they usually are
usually set up with beneficiary designations or joint ownership.
Common Issues and Disputes in Probate
Family disputes often arise during
probate, especially when a will is drafted while the deceased was ill or near
the end of life. In these cases, relatives may question the will's validity and
claim it was the result of fraud or undue influence.
Disputes can also center on the
executor. If family members believe the appointed executor is unfit or
dishonest, they may petition the court to have someone else appointed. Because
the executor plays a critical role in managing the estate, they are expected to
act responsibly and transparently. When an executor becomes unresponsive,
withholds information, or mishandles estate matters, legal action may be
necessary to remove and replace them.
The Importance of Proper Estate Planning
A well-drafted will and proper estate
planning can prevent many of the common probate issues. It is important to be
aware of the probate process and potential complications, so you can plan to
avoid those problems in your own estate.
In order to ensure their affairs are in order, it is best to consult with an experienced attorney for will drafting and estate planning. Probate doesn't have to be a messy or contentious process. With proper planning, you can ensure your wishes are followed and your loved ones don't face unnecessary hurdles.