Estate Planning FAQs (Part 1): Wills, Trusts, and Probate

In nearly 20 years of estate planning conversations in Georgia, the same questions come up again and again, so I’m answering them in this article series. This one (Part 1) covers foundational questions about wills, probate, and when to start planning. The most important takeaway: estate planning isn’t about how much you own; it’s about who you want to protect.

This article series (a two-parter, because I get a lot of questions in my work!) is set up like it’s a real conversation. So imagine you’ve come into my office or joined me on a Zoom call to ask the estate planning questions you’ve always wondered about.

I’m answering all of them here, just as I would if we met in person. If you don’t see the question that’s on your mind, it might be answered in Part 2—or you can always click here to book a Discovery Call and ask my team directly.

Estate planning basics: When to start and what you need

“Do I really need an estate plan if I’m young and healthy?”

No one knows when they’ll need an estate plan. But when you need it, you really need it, and by then it’s too late to make one.

That may sound grim, but I’m not trying to be morbid here. This is just a gentle reminder of the reality: an estate plan is only effective if you have one before something happens. There are no do-overs, and no chances to put one together after the fact. 

This is why I always tell my clients that not having a plan is a choice of its own. Georgia has a default estate plan; it’s called intestate succession, and it’s a set of blanket rules to decide who inherits your assets and who raises your kids if you don’t decide first. The problem is, you don’t get a say in any of it (and neither does your family).

So your age and your health should not be the determining factors when making this decision. Whether or not you need an estate plan really depends on two things:

1. Whether you have loved ones who depend on you
2. Whether you want a say in what happens after you’re gone

“Do I have enough assets to justify an estate plan?”

This is probably the biggest question that hangs people up: “Do I have enough money for an estate plan to be worth it?” And as I alluded to above, this is the wrong question.  

People get stuck calculating their net worth, but the value of an estate plan has almost nothing to do with a dollar figure and everything to do with whether you own property, have kids, or want a vote in what happens to your loved ones and your assets after you pass away.

So to this question I say: If you have minor children, you need a plan, period. That’s how you decide who raises them if you aren’t there, and that decision has nothing to do with what’s in your bank account.

“I don’t have much equity in my house yet” doesn’t mean you won’t benefit from a plan, either. If you own real estate in your name, that changes everything about how your estate has to be handled (more on that below, when we talk about probate).

So again, it’s not about how much you own, it’s about who you’re trying to protect. If the answer is “my kids” or “my spouse,” that’s enough of a reason to need an estate plan. The net worth conversation is just a detail.

A quick note on the “just put a beneficiary on it” shortcut: Georgia now allows a transfer-on-death deed for real estate. People sometimes hear that and think they’ve found a free workaround: just name a beneficiary on the house and skip the lawyer, right? In my experience, that tool comes with problems and tends to be unreliable in ways that only show up later, when it’s too late to fix. For those reasons, I only recommend doing it in very specific circumstances. A trust accomplishes the same job (and then some), without the risk.

“Do I need a will or a trust? What’s the difference?”

Wills vs. trusts are a common source of confusion, and I constantly see people mixing them up. I had a client not long ago who kept saying “my will,” when we were in fact talking about his trust.

A will and a trust are two separate documents, designed to work together. Each one does a specific job as part of your estate plan.

• A will is a plan for going through probate with your wishes documented. It will not help you avoid probate. In fact, probate is the process of implementing your will, so you can think of a will as an explicit set of instructions written for the court. Wills do one critical job that trusts can’t, though: naming a guardian for minor children.

• A revocable living trust will protect any assets it holds from probate, while giving you more control over your estate. This is how you can pass your property and money directly to your loved ones, without delay.

“Is a will all I need?” Here’s a good rule of thumb 

A will works beautifully if you’re confident you’ll never really need to use it. That means:

• You don’t own real estate,
• You don’t have minor children, and
• All of your assets can pass another way (e.g., through beneficiary designations or accounts held jointly with your spouse with right of survivorship)

The moment you own something that would have to pass through your will, that’s a good sign that you need a plan with a bit more structure, like a trust. Relying solely on the will means putting your family through probate, which also means: delayed access to funds, court fees, and a whole lot of hassle. Most people hope to spare their families from that experience.

For Georgia families who own a home, have kids, or have built something like a small business, a will and a trust aren’t mutually exclusive. Most people need both, working together. The trust keeps your assets out of probate and controls how your beneficiaries inherit, while the will names a guardian for your minor children. 

(We’ll get deeper into how these two documents work together in Part 2.)

“Does a will avoid probate?”

No, it doesn’t, but this is a persistent myth. It’s so common that many people will contact me requesting only a will, but will also select “avoid probate” as their most important estate planning goal. These two desires directly conflict with each other, and most people have no idea.

Every valid will in Georgia goes through the probate court.

You can think of a will as a document specifically written for probate, because it’s a legal way to communicate your instructions to the court. 

If avoiding probate is your goal (and for most families, it is), the tool you want to use is a revocable living trust.

“What is probate?”

This is a great question, because “probate” is one of those scary-sounding terms that gets thrown around a lot and means almost nothing to most people, like “escrow” or “quantum physics.”

Probate is the court-supervised process of legally transferring your assets to the people who will inherit them. In general, here’s how it works:

1. The court validates your will and formally appoints someone (your executor) to act.
2. The court then ensures your creditors get paid first by settling the estate’s debts.
3. The remaining assets are then distributed to your beneficiaries.
4. The estate stays open until the court officially closes it.

That last point can trip people up, so it’s good to be aware of beforehand. Probate is front-loaded, so it can feel like the work is done long before the court formally closes the estate. The wind-down period on the back end can take a long time, which is frustrating if you aren’t expecting it. On top of what was already a bureaucratic process, the backlog of cases from COVID has caused a long-lasting delay in the Georgia court system, so probate takes months from start to finish even if your documents are in order.

“What happens if I die without a will? Doesn’t everything just go to my spouse?”

Not necessarily. And if you have kids, definitely not.

When you die without a will in Georgia, the state’s intestate succession rules take over, and what happens next depends on your family situation:

• Married, with no children: Yes, generally everything goes to your spouse.
• Married with children: No. Your spouse and your children split the estate.

This might sound fine on its face, until you think about it. If you’re a married parent of a young child and you die without a plan, the goal is almost never “my spouse gets half of my estate and my kindergartner gets the other half.” The goal is that your surviving spouse has what they need to raise your child. But Georgia’s default rules don’t operate on logic or what you probably intended; rules are rules.

This scenario gets even messier with second marriages and children from prior relationships, because the default rules can produce an outcome nobody would have chosen.

Another PSA on intestacy law: All of the above assumes you’re legally married. If you have a long-term partner but you’re not legally married, and you have no documents in place, your partner inherits nothing under Georgia’s default rules. “Partner” is not a legal status. This is why estate planning is such an important way to take care of the people you love. 

“Can I write my own will?”

Yes, you can. But whether you should is a different question. The danger of a DIY will you write yourself, or even one you download from an online template, is that the document does exactly what you tell it to do, without advising you on what makes sense for your family.

Here’s an example: I recently reviewed a will with a simple instruction to split an estate evenly three ways between two siblings and the testator’s church. This sounds fine on paper, or if you aren’t familiar with estate law.

In reality, this kind of setup would force the sale of the family home, because one beneficiary wanted to live in that house, and there was no cash to buy out the others’ shares without selling it. Nobody had walked the client through what splitting everything equally would look like when the assets weren’t neatly divisible. 

A template (or an AI chatbot) will happily execute an instruction like “divide my estate into equal thirds.” But it simply doesn’t have the experience to ask questions like, “Does one of your kids want to keep the house?”

A qualified attorney can pressure-test your intentions against what will actually happen when your family uses your plan. 

Do you need an estate plan?

If I step back and think about the questions I get most often, most of them trace back to one root worry: is this necessary for someone like me? The answer always comes down to who you’re trying to protect and whether you want to have a say in the outcome.

If you’re part of the majority of people who have been meaning to sort this out “someday,” I hope this article helps answer some of your questions and demystifies the process a bit. It’s all so much more manageable than most people think.

Ready to stop putting it off? Click here to book a free discovery call.