When a Georgia resident dies, his or her estate generally goes through probate. Having a Will does not avoid probate, it only directs where your property goes. Certain circumstances do allow property to bypass the probate process.
Whether you die with or without a will, your estate goes through probate. However, if you have an estate plan, including a will, you have more control over who inherits your assets. If you do have a will, the probate court determines whether the will is valid and appoints an executor. If no will exists, the court appoints an administrator. The court also ensures that the estate pays any outstanding debts and distributes any remaining assets that go through probate.
No Probate by Requesting No Administration
If the heirs agree on the disbursement of the property of a resident who died without a will, and if there are no outstanding debts of the estate, the heirs can file a plan with the probate court. The plan requests that the estate skips probate and must include the distribution of all of the decedent’s property. If there is any outstanding debt, the court must notify all of the creditors of the petition and they will have the opportunity to object.
Property That Skips Probate
Some property skips probate altogether. These assets avoid the probate process because of how they are owned or because of beneficiary designations.
- If you transferred property to a trust, that property does not go through probate. The trust dictates who receives the property.
- Any asset that names a beneficiary directly avoids probate. Assets might include the proceeds from a life insurance policy, IRA, 401(k) and other retirement accounts that name a beneficiary.
- Payable-on-death or Transferable-on-death accounts, such as bank accounts or securities.
- Property titled in your name and another person’s name as joint with right of survivorship, but be aware that this means any real property is owned by all parties named in the deed during life. Joint ownership can have tax implications and liability.
If you are married, whether you are estranged or not, your spouse is entitled to one-third (1/3) of your estate. If you have a pending divorce or are divorced, that person no longer has a legal right to your estate. Be aware also, if you do not have a will and you have minor children, your minor children are entitled to part of your estate. Everything does not pass directly to a spouse. Generally, if a minor child inherits part of an estate, a conservatorship must be established so it is important to review your assets and plan appropriately.
Contact a Georgia Estate Planning Attorney
If you are unsure of whether you can or should change a beneficiary if your spouse is estranged or if you plan on divorcing, contact our Georgia estate planning attorneys at Grissom Law, LLC as soon as possible, as there might be restrictions on changing asset ownership within a certain amount of time prior to filing for divorce.
Disclaimer
This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. By using this blog site you understand that there is no attorney client relationship between you and Grissom Law, LLC.