Do I need to avoid Probate?

You might have heard the term probate before, but you may not fully understand what probate really means when it comes time to actually probating a deceased person’s estate. Probate is the court process of paying debts and transferring assets of an individual after their passing. If someone passes away with any assets titled in their name they will most likely need to have a probate estate opened to legally transfer those assets to their heirs or beneficiaries. Even someone who has a Last Will and Testament must have their assets processed through the Probate Court.

So why do you need to avoid this process? The answer is simple time, money and privacy.

Time

The probate process can take anywhere from 6 months up to 2 years depending on the situation. In a Georgia probate estate, the absolute fastest time frame an estate can be probated is 6 months. This is due to statutory required notices and time frames that must be followed. On average in a Georgia estate, the typical length of the probate process is 12 to 18 months. This leaves grieving family members having to deal with complex legal issues during one of the most difficult times in their lives for much longer than they would prefer.

Another issue is that you may not have access to the money in the estate right away. Depending on the Court, it can take 3-8 weeks to get approval once the petition to open the estate has been filed. Family members are often left having to cover funeral expenses and mortgage payments out of their own pockets. These expenses can be reimbursed from the estate, but often times family members cannot afford to pay their own expenses and those of the deceased while they are waiting for the Court to give them approval to gain access to the estate funds. Homes can be foreclosed on during this time period, which would leave family members with few options to save the property that might have equity in it. 

 Money

 The probate process is expensive for many reasons. The first being the Court may require a bond to be posted before the estate can be opened. Bond premiums can cost anywhere from $100.00 up to $3,000.00 per year depending on the size of the estate. There are probate court filing fees associated with the multiple petitions that would need to be filed throughout the probate process. The administrator or executor of the estate is entitled to receive compensation from the estate for their services of administering the estate. In Georgia probate estates the executor’s compensation usually works out to be about 5% of the total cash assets that are in the estate. There are exceptions to this general calculation, but a rough estimate for the fees would be about 5% of the total estate value. Another expense would be legal fees paid to an attorney who assists the executor or administrator. Often times, the process becomes overwhelming and confusing to the executor or administrator of the estate and they decide to hire a probate attorney to assist them navigate through the process. This cost on average could be anywhere from $2,000.00 up to $30,000.00 depending on the size of the estate and level of assistance provided by the attorney.  

 Another financial benefit of avoiding probate is the ability to avoid paying creditors of the deceased. With certain types of living trust you may be able to avoid paying certain debts of the estate. Any outstanding debts owed by the deceased are to be paid from their estate. This means all the debts of the estate must be paid before any distributions to the heirs or beneficiaries. Depending on the situation, this can leave the heirs and beneficiaries of the estate with no inheritance or very little.

 Privacy

If your estate is probated it becomes public record. This means that anyone can request a copy of your will, all petitions filled, and if required an inventory and return that shows all of your assets and where those funds went. This is especially important if you own a business. Usually a small business will have to be transferred through probate court. Most business owners do not want the financial inner workings of their business displayed in public records for many reasons. It is important to keep private business, private even after someone’s passing.

 You may be asking yourself right about now “How do I Avoid Probate”? To find out more information about the options available to you contact our office for at 770-285-8229 to speak with one of our experienced Georgia Estate Planning Attorneys.