One of the questions we commonly hear at Siedentopf Law is “If I have a will, does that mean I can avoid the probate process?” The short answer is no. However, having a will in place can make the probate process easier for everyone involved.
What is a will?
A Last Will and Testament is a legal document in which a person provides instructions for the distribution of his or her assets upon death. The will can help you pass along specific assets to designated individuals or causes, place certain assets into trusts, and spell out the instructions for the handling of your estate. This document can also be used to designate a guardian for any minor children. The executor of the will, also known as the personal representative, helps ensure that the individual’s property is passed to the beneficiaries according to his or her final wishes.
While a will is a valuable tool for estate planning, it does not cover every situation. A will does not guarantee privacy because everything filed in Probate Court is public record. A will cannot provide assistance if the individual becomes ill and needs help with legal and financial needs. Also, a will is not the best instrument for minimizing estate tax.
What is probate?
Probate is the legal procedure during which the Probate Court validates a Last Will & Testament and executes its instructions. The process, depending on the complexity of the estate, can take six months or longer. For those administering a will or estate plan in Georgia, here is a look at the steps typically involved in the probate process:
- Compile the probate documents (ex: will, death certificate, property deeds, life insurance paperwork)
- File the petition for probate and notify all legal heirs
- Publish notice for creditors in local, designated newspaper
- Marshall the assets together
- File the decedent’s final tax return
- Distribute the estate to creditors and heirs
- Officially close the estate
How can a will help with the probate process?
While having a will in place does not mean that you can avoid probate, it can help you navigate the probate process faster and more easily. Unless there is a will waiving the bond, an executor or administrator must buy a bond in the amount of the estimated size of the estate. A will can also waive the requirement of filing an inventory of all the estate assets with the Probate Court. The removal of these requirements makes the process much easier and less stressful for the administrator.
It is also important to note that in Georgia, the probate process tends to be faster and less expensive than some other states. For more information, you can watch our video on Avoiding Probate or read our blog on Assets that Pass Outside Your Will and Probate. If you have additional questions about estate planning, drafting a will, or Georgia’s probate process, please contact Siedentopf Law at (404) 736-6066 or via our online form.
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