Probate in Georgia is Worse Than You Think
So many people think that the probate process is straightforward and relatively simple. They think, “Everything will just pan out as I would want, so why bother with creating a Trust? Let’s save the family some money for their future and skip the expense of creating and maintaining a Trust.”
But this idea that probate is easy… it is a myth. Probate is never easy. Even simple estates that go through probate have to jump through hoops—even when everyone agrees. Because probate is not easy. I’ll say it again. Probate. Is. Not. Easy.
If you don’t have an estate plan, you have to go through probate. If all you have is a Will, you have to go through Probate. And as we said before, probate is not easy. At best, it’s a long and drawn-out process where everything doesn’t go as you would have wished or expected, and it takes forever. At worst, there are fights and your loved ones lose their relationships over your assets— costing your estate thousands in the process—and it takes forever… and a day.
We can’t speak for every state because our practice is in Georgia. But we are here to tell you that probate in Georgia is worse than you think.
Problems With Probate
Probate is a slow process. This is not because the state is out to get you or to drain you dry. The Probate Court is not the bad guy here! But probate is slow because there are laws and timelines that must be followed. And these laws exist to protect you and your heirs. But safeguards within the law always slow things way down. Even if your Will is crystal clear and uncontested, it can take many months— even years— to close out an estate. This is a burden on your loved ones.
Probate is also public. When an estate is probated, it becomes a part of the public record. This means any human in the entire world can request a copy of your estate paperwork through the clerk’s office. And the clerk will give it to them, no questions asked, as long as they pay any copying and production fees. So, say you disinherit someone in your Will and you didn’t want anyone to know that. With almost no sleuthing at all, anyone can discover that information. They could even post it online or in the newspaper. Probate is public.
Probate is also prone to conflict. This is because everything is public. Any heir or beneficiary can see the entire case file and contest any part of it. Contesting a Will is also much easier to do than contesting a Trust.
Maybe you’ve heard an attorney say that Georgia is a more friendly state for probate than another. This can be true. But just because it’s more friendly doesn’t mean it is friendly.
How to Avoid Probate
So maybe you’re thinking, “I thought everyone had to go through probate! Isn’t probate required?” I have some really fun news for you! With great and strategic estate planning, it is possible to avoid probate altogether.
If you create a Trust that owns all of your property at the time of your death, you personally have no assets and so there is nothing to pass through probate.
You may be thinking “how do I make sure every single asset is in my Trust?” That’s a great question! When you work with a skilled estate planning firm like mine, we work together to make sure every asset you own is properly transferred into the Trust. And then we create what is called a Pourover Will that serves as a catch-all to grab any assets that may have slipped by (or that you didn’t even know about). This Pourover Will says “I have a Trust. Everything that I own should be in the Trust. But if I missed something I give it to the Trust and the Trustee of the Trust should distribute it following the rules of the Trust. Run the missing asset through probate as quickly as possible.”
You may be wondering, “but doesn’t this mean I could still end up in probate even with a Trust? What is the point?” And I absolutely see where you’re coming from! When you work closely with a firm like mine, we recommend regular reviews of your estate plan, your life situation, and your assets to make sure we haven’t missed anything. But the tricky thing is assets that you don’t know about. The Pourover Will needs to exist to catch those assets.
What is an asset you don’t know about? Say your death is the result of a motor vehicle accident or medical malpractice. Your loved ones file a lawsuit and win. They win a lump sum settlement of any size. That settlement is issued to your estate. Not to your Trust. The Pourover Will is there to catch that settlement, run it through probate as quickly as possible, put it into the Trust, and your Trustee can funnel it out to your beneficiaries under the rules of the Trust.
Is Probate Required?
Probate is always required if a deceased person owned assets. The probate process gets the ownership of those assets into other hands.
But you can circumvent probate if your Trust owns all of your assets! Meaning, you save your family time, money, and frustration! A Trust is the secret weapon to saving you money, time, and potential familial conflict!
Don’t settle for just a Will! Call us at (404) 736-6066 or visit our website to schedule a consultation to learn how you can create a plan that avoids probate in Georgia through the use of a Trust!
