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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.

Prepare for probate even if under the age of 40

Many people in Georgia may still be under the impression that estate planning is not really necessary until at least the age of 40. The truth is that any adult could benefit from estate planning since anything can happen to anyone at any time. Without any estate planning at all, the probate process becomes more of a challenge to the loved ones left behind.

Without a will, the state of Georgia decides who inherits a person's assets after death. In addition, the courts could end up deciding who cares for minor children as well. Having a last will and testament allows the individual to retain control over these decisions instead of giving them to the state and the courts.

Preparing for estate administration with no obvious heirs

Just because a Georgia resident does not have a spouse or children does not mean that estate planning can be skipped. In fact, some would say that the need is more urgent. Without any immediate family to inherit an individual's assets, they could end up with the state if no other heirs can be found. Someone would need to handle the estate administration regardless of whether a will exists, and that person's job becomes more of a challenge. 

Instead, someone with no children -- or other immediate family -- could consider giving the estate to charity. A trust could be set up in order to allow the individual to see the fruits of giving during life as well. In the alternative, many people have siblings, parents or nieces and nephews they might leave an inheritance to in the manner they choose. Choosing someone to serve as executor of the estate might require more thought since it needs to be a trusted individual. However, it does not have to be a family member.

Another step to make estate administration easier on family

Even when a Georgia resident is well-known by his or her family members, understanding the thinking behind certain decisions may not be easy. Wills are designed to pass on assets, reduce taxes and achieve other wishes of the testator. However, family members often need more guidance in order to get through estate administration.

A will can handle the legalities of death, but it may not contain further instructions that could make carrying out those wishes less confusing and complex. A will could reference a letter expressing other, additional last wishes that family members can use as an instruction sheet. Those Georgia residents who include a "letter of final wishes" can make arrangements for their funerals, explain the contents of the will and provide for pets, among other things.

What happens to debts during estate administration and probate

Georgia residents appointed as executors in the wills of their loved ones may be under the impression that their duty is just to distribute the assets of the estate. Unfortunately, that perception is incorrect. Many other duties are required of executors during estate administration and probate, including settling the decedent's debts.

The first thing that executors and family members need to know is that they are not personally responsible for the debts of their loved ones unless they co-signed or are jointly responsible for the balanced owed. It might help alleviate some trepidation regarding a decedent's loved ones to know this as quickly as possible. Unscrupulous creditors may attempt to convince these individuals of the opposite.

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Atlanta, GA 30303
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