Generally speaking, probate is a process that is mandatory after someone passes away. The court verifies the last will and testament and appoints an executor or administrator. The executor or administrator then distributes the assets in the estate. It can be a costly and lengthy process and should be avoided if possible. The best way to ensure you do everything correctly to efficiently get through or avoid probate altogether is to hire a probate attorney.
To determine whether or not you should work with a probate lawyer, ask yourself the following questions. If you can’t answer the questions, it’s probably in your best interest to work with a probate expert. If you can answer “yes” to most of the questions, you may be able to close the deceased’s estate without an attorney.
1. Can most or all of the deceased person’s property be transferred outside of probate?
The answer to this question will depend on the amount of planning the deceased did before death. Ideally, their assets can transfer to new owners without passing through probate. If the assets are held in joint ownership, pay-on-death, held in a living trust or have a named beneficiary (e.g. retirement accounts or life insurance policies), you should be able to bypass probate proceedings.
2. Does the estate meet simple “small estate” requirements?
It’s ideal if probate isn’t necessary, however, if it’s unavoidable, determine whether the estate qualifies for small estate procedures. In Georgia, if the only asset is a bank account with $15,000 or less on deposit and there is no will, you can use a small estate banking affidavit found in O.C.G.A. § 7-1-239 to transfer the account to the next-of-kin. This is an out-of-court process and much simpler than standard probate.
3. The estate does not contain business or commercial properties.
If the estate contains a business, commercial real estate or other assets that require special handling, you will want to contact a probate expert. Things get tricky in these situations as managing, appraising, and selling a business can’t be done by just anyone.
4. Does the family get along?
If the family does not get along and it seems that someone may contest the will, you will want to hire a probate lawyer immediately. Although will contests are rare, they can cost a lot of money to the estate and as things are drawn out, they can tear a family apart. Hopefully, a lawyer can prevent a messy court battle.
5. Does the estate have enough assets to pay its debts?
If the estate has enough money to pay legitimate debts (e.g. funeral costs, final income taxes, etc.) and there will be money left over for beneficiaries, you don’t have to figure out which debts to pay. However, if it looks like there will not be enough money in the estate to pay debts and taxes, do not pay anything and contact an attorney. In this case, state law will determine which creditors get paid first.
6. Is the estate small enough to not owe state or federal estate tax?
The vast majority of estates do not owe federal estate, so this won’t likely be an issue. Georgia does not have an inheritance tax and the Federal estate exemption is over $11.5 million. If you are an executor of an estate that is over $11.5 million, don’t attempt to file an estate tax return on your own. Consult legal and tax experts to complete this.
If you’re uncomfortable answering the above questions, don’t care to or weren’t able to answer “yes” to them, please contact us. We are happy to be your probate expert.
Located in Savannah, GA, we offer online scheduling and virtual appointments. Please schedule online here or call us at (912)244-7581.