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Atlanta Estate Planning Law Blog

Consider avoiding probate for the sake of surviving loved ones

Estate planning may not be high on the list of things that most people want to do, but it is necessary. Not only will it keep the state of Georgia from deciding what happens to an individual's assets upon death, but it could also be structured in such a way that probate may not be necessary. Many people do not understand that during the process, surviving family members will not have access to any assets that are subject to the probate process.

For instance, if a Georgia resident set aside certain monies in a will for a family member, that person will be required to wait to receive those funds until the estate is settled. That could be months or even years depending on the circumstances. In addition, those monies could end up being used up during the probate. Whatever inheritance the individual intended may not be there when all is said and done.

Save password? For better estate administration, yes

The outcomes of legal cases addressing new or evolving situations and technology often set precedents for how laws should be applied moving forward. Estate administration appears to have experienced just such a precedent, with a recent court ruling affecting how emails might be handled after death. The case also highlights the importance of addressing how digital assets should handled.

In 2006, two siblings outside of Georgia were made representatives of their brother's estate following his death.  Soon after they attempted to access their brother's stored emails with Yahoo, but the tech company refused, claiming that a 1986 law prevented it from doing so. In 2009 they filed a probate court complaint about Yahoo. They claimed that they needed access to the emails in order to properly administer their brother's estate.

Understanding your role as an executor in estate administration

Being chosen as an executor is both a privilege and a responsibility. The fact that a loved one decided that you were the best person to undertake the estate administration duties after his or her death may have felt like a honor, but you also need to understand what it will entail. Fortunately, you do not have to fulfill your duties alone as you go through the Georgia probate process.

As an executor, you are considered a fiduciary, which is an individual or entity who acts for the benefit of others and owes them a duty of care. This means that your actions could come under scrutiny from the heirs and beneficiaries you serve during the administration of the estate. Your first task will be to read your loved one's will in order to understand the instructions left behind.

Appointing a guardian for a minor child during probate

When making out a will, most Georgia parents appoint one or more individuals to care for their children after death. Of course, if the other parent survives, he or she would most likely continue to parent the children unless found to be unfit, uninterested or otherwise unable to serve their best interests. If there is any question regarding this issue, it can be dealt with during the probate.

In many cases, the court will approve the guardian appointed in the will. However, there are cases where even the backup guardian does not pass muster in the court's eyes. If that happens, then anyone close to the children may petition to become their guardian. Often, this person is another relative, but it could also be a close family friend.

Can you avoid probate if your loved one had no will?

When a Georgia resident dies without leaving behind a last will and testament, surviving families may have to seek the court's assistance in reconciling the estate. Then again, that may not be necessary. It might be possible to avoid a lengthy and time-consuming probate process if everyone can get along.

Without a will, there could be fighting among heirs and creditors demanding to be paid. Your loved one's property will be distributed in accordance with Georgia law, which may not be how your loved one would have preferred. Under these circumstances, it will be necessary to begin the probate process. Depending on the amount of contention between the heirs and the number of creditors who need to be paid, it could take a significant amount of time before any distributions take place.

What if the will is contested during probate? Who has standing?

Perhaps you were appointed as the executor of a Georgia resident's estate. That person has died, and you have begun the probate process. Now, you hear that someone wants to contest the will. First, you need to know that not just anyone can file an objection to the last will and testament. The person filing the objection must somehow be affected by the current will.

Some Georgia residents have family members who may have received a share of the estate if there was no last will and testament. For example, if the decedent had two children, but only provided for one in the will, the other child may contest the will. In order for the will to be invalidated, that child would need to show that the deceased parent did not intentionally leave him or her out of the will. It will also be necessary to show that the will is not valid for some reason such as duress or incompetence.

The public side of Carrie Fisher's probate

Actress Carrie Fisher of "Star Wars" fame died after suffering a heart attack. As is the case in most deaths here in Georgia, a probate was filed. Recently, some of the details regarding Fisher's probate became public.

It appears that her 25-year-old daughter receives approximately $6.8 million in assets from her mother's will. According to reports, Fisher's daughter inherited several assets, including a vehicle, bank accounts and her mother's public likeness and image, among other things. She was also the beneficiary of a life insurance policy.

Planning dictates estate administration

When a Georgia resident dies without leaving some documented instructions regarding the disposition of his or her estate, surviving family members could encounter difficulties when it comes to the probate process. This happens more often than people realize because over half of the country's population does not even have a will. An individual's planning -- or lack thereof -- dictates how estate administration proceeds, so it may be beneficial to consider what kinds of challenges are left for family members after death.

Having a last will and testament is a good start. This document provides a Georgia resident with a way to express his or her wishes. It can outline the disposition of property and name a guardian for any minor children. When leaving certain assets to heirs, it may be a good idea to be sure that they are not already earmarked for a particular person.

A will could simplify estate administration for family members

Most Georgia residents have heard that they need a will, yet only about 50 percent of Americans have one. Reasons for this vary, but some of the most popular seem to be that individuals do not want to discuss their own demise, have not found the time or believe that they are too young to worry about it. The problem is that no one knows exactly when he or she may pass away, and leaving family members without some instructions regarding the distribution of property could unnecessarily complicate the estate administration process.

Dying without a will or trust means that the court must follow Georgia's laws of intestacy. Whatever the decedent may have preferred no longer matters. The court will distribute his or her property in accordance with those laws. In addition, a will designates someone to serve as the executor of the estate, but without a will, family members will need to petition the court to appoint someone to serve in this capacity.

Including certain things in a will could complicate probate

That statement may seem contrary to what most Georgia residents hear when it comes to estate planning. However, there are certain issues and assets that should not be covered in a last will and testament. Doing so would more than likely cause unnecessary complications to the probate process.

Certain types of property are titled in such a way that they pass to another individual by operation of law. For instance, a home titled in joint tenancy will automatically pass to the other party after the death of the other party. Many retirement accounts and life insurance policies require beneficiary designations, which usually take precedence over what a Georgia resident may put in his or her will.

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