What is Probate, Anyway?

A recent client urged, “I want you to do everything you can to avoid probate when I die.” This statement was immediately followed by, “What is probate, anyway?”

Good question! Think of probate as recycling of assets, or as the legal embodiment of the old saying that you can’t take it with you. My dad used to say that you’ll never see a trailer hitch on a hearse!

When a person dies owning a house, a bank account, a retirement plan, a car, stocks, or a business, those things are no longer of any use to the dearly departed one. Probate is the legal method of passing title of certain assets to the living. If you have a will, your stuff will go to those you choose; if not, it will pass as the state determines. Probate also is the process of settling the debts of the deceased.

Not all property has to pass through probate. Certain non-probate assets are designated to pass directly by law. Examples are: (1) a house co-owned by spouses as joint tenants with right of survivorship (wording on the deed has to be precise); (2) a 401 (k) or life insurance policy with a beneficiary designation; or (3) a joint bank account.      

In the case of probate assets -- those that do not automatically pass by law or beneficiary designation -- the legal heirs or beneficiaries of a will must file a petition with the probate court in the county where the deceased person resided at the time of death. This Petition, known as a Petition to Probate Will in Solemn Form when the decedent has a will, or a Petition for Letters of Administration when there is none, asks the Probate Court to name a legal representative of the estate – the Executor when there is a will, or Administrator when there is none (Sometimes the generic term Personal Representative is used to cover both).

Heirs at law -- those who would inherit if there were no will -- must either consent to the Petition in writing or be given the opportunity to object to the petition. Once named, the estate representative has the legal authority to collect assets, determine debts, resolve claims, determine if taxes are due, and distribute what’s left to the heirs or beneficiaries.

After the death of a loved one, an experienced probate attorney can help sort through this confusing maze of probate and non-probate assets, and negotiate the numerous technical requirements to complete the process. Attorneys in Georgia typically charge by the hour, so that the cost of probate depends more on the complexity of the estate than the value of the property.  By doing it right the first time, they will save you money in the long run. If you have experienced the loss of a loved one and need advice, call me, John O. "Jack" Moore at (770) 277-7767 or email me at johnomoorelaw@gmail.com for a free consultation.

IT’S ON THE INTERNET

WHAT COULD POSSIBLY GO WRONG?

We live in a do-it-yourself (DIY) society, and the legal world is no different. Popular websites give the impression that it’s easy and cheap to create your own estate planning documents. Hey, the Internet says it’s true! What could possibly go wrong?

Plenty, it turns out. Here are some recent DIY disasters that I have encountered in my practice:

• A husband and wife created internet wills leaving all their property to each other, then witnessed each other’s will, which meant that any provision for them in the will (everything!) was voided - that's right, they got nothing.

• A husband named his church as Executor of his DIY will that left everything to his wife. When he died, much time and money was spent getting the church to decline to serve, and then having the wife (who wasn't named) legally qualified to serve.

• A single woman left her modest estate to her daughter in her DIY will, but the will did not waive the time-consuming and expensive requirements of filing inventories and annual returns. Because of one missing paragraph, most of her estate was eaten up in accomplishing these unnecessary actions.

• A high-level business executive drafted his own will, dividing up his complex estate among his current wife and his children from two previous marriages. While he thought his will was clear, the self-drafted language was ambiguous, and two years and more than $40,000.00 in attorneys’ fees and costs were spent sorting it all out. His hopes for family harmony after his death were destroyed.

All these good people thought they were protecting their loved ones and saving a few bucks. What they had was a false sense of security. All the internet legal sites state that they are not giving legal advice, but that is not my problem with them. My beef with them is that they give the false and dangerous impression that estate planning is easy and can be accomplished without legal advice.

Estate planning is not just filling in the blanks on a computer. What controls the destiny of your loved ones, and what requires excellent legal advice and judgment, is knowing what to put in the blanks and how to draft the language.  A skilled and experienced advisor can help you decide: (1) Who will represent the estate? (2) Who will take care of your children? (3) To whom, how and in what form should your property be distributed? (4) What is "probate" and what passes inside and outside of probate? (5) Who should handle your financial affairs if you are alive but incapacitated? (6) Who should make medical decisions for you if are no longer able to make your own? (7) What are the pros and cons of a living trust? (8) What about estate taxes?

Once these questions are answered, your documents need to be expertly drafted to make sure your wishes are carried out. A misplaced word or a missing or confusing phrase can spell disaster.

My mom always said, "Don't leave a mess for someone else to clean up." Never does that hold more true than in the world of estate planning. Don't trust the fate of your loved ones to the internet! For a free consultation, call me, John O. "Jack" Moore at (770) 277-7767 or email me at johnomoorelaw@gmail.com.