Atlanta Probate Litigation Attorney
In a perfect world, we would all leave definitive instructions on how we want our estate distributed after death. Unfortunately, that does not always happen. Human nature is complicated, and when there is a grieving process involved, it becomes even more overwhelming.
When we lose a loved one and we learn there is no estate plan or final wishes memorialized, problems can and often do occur. Probate litigation may become necessary and what is an otherwise intimate, difficult and very private process soon becomes the business of the courts in the state of Georgia. As probate litigation attorneys, we work to define and protect your rights any moment a probate dispute occurs.
When does probate litigation become necessary?
In the state of Georgia, when a deceased person does not leave a valid will or other estate planning documents, a probate attorney is hired to resolve the issues. Legal guidance may also become necessary if a family member has disputed the contents of the will or the capacity of the decedent when he executed the will. As you can see, the role of estate planning is crucial. There is simply no way of knowing what a loved one wished to leave family members unless it has been properly memorialized and filed according to Georgia law.
As probate litigation attorneys, our goal is to resolve the issues with minimum conflict. In our experience, legal matters such as these can often delay the grieving process, and that benefits no one.
How does the probate process work?
At the time of the will being filed in the county where the deceased live, a petition of probate is also filed. In the case where a will does not exist, the Georgia probate court will appoint someone to serve in this capacity. One of two things will then occur: a hearing is held to formally name the personal representative, and all known heirs will be recognized; or, it’s deemed that a hearing is not necessary, but the decision is not finalized for a statutory period. All parties involved are notified of this.
Once this aspect of the legal process plays out, Letters Testamentary are issued to the personal representative or executor. Proper notice must be published in a newspaper within the deceased’s home town or county. This must be completed within 60 days so that creditors will have an opportunity to lay claim to any part of the assets. From that point, creditors must make that claim within 90 days and a proper assets inventory must be provided to the court.
Finally, once the debts have been settled, a Petition to Discharge is generally filed, at which time the probate court will then distribute any remaining assets and then close the proceeding, unless pending litigation prevents it.
What are the duties of an executor in the probate process?
In the state of Georgia, the executor of an estate is charged with several duties. Among them, he or she must contact creditors, such as banks, credit card companies, and mortgage companies to inform them of the death. This notification is applicable to government entities such as the IRS, as well. The creditors will likely ask for a number of documents in order to first, ensure they are providing otherwise confidential information to someone who has the authority to receive it and second, to ensure that there is a point of contact that can work with them to address any outstanding debts or other issues.
Once the debts are settled or properly contested, it is the responsibility of the executor to divide the remaining assets according to the instructions in the will. If no will was left behind, the assets must be divided according to the intestacy laws of Georgia. After all of this has been adequately addressed, reconciled and filed with the state, then the court issues an order that effectively closes the estate.
Are all estates probated in the state of Georgia?
No, not all estates are probated. An estate must meet certain guidelines. In those instances, where there is no monetary value or property, there is no need for the probate process. Also, if there is no will and provided all of the deceased’s heirs agree on how to divide what assets are left, and provided there are no creditors making claims against the estate, the court can issue an order that states that probate is not necessary.
Some assets transfer automatically at the time of the death of an owner. This includes joint tenancy assets, which is when assets are jointly owned. The surviving joint tenant becomes the owner of the asset in its entirety. This is referred to in the state of Georgia as the right of survivorship.
What if there is a will, but family members are disputing it?
Unfortunately, that happens at times. When heirs disagree with the contents of the will or if they say it is ambiguous, a probate litigation attorney is required, and if the matter can’t be settled, probate court is the next stop.
What is the Georgia estate tax?
The state of Georgia does not have an estate tax nor does it have an inheritance tax. Note, however, that there is a federal estate tax. It changes annually and currently, the federal estate and gift tax is at $5.45 million per person or for a married couple, the amount is doubled to $10.9 million.
The Importance of a Lawyer in Probate and Estate Litigation
Probate or estate disputes have the unfortunate tendency to drag on. The probate lawyers at Hecht Walker know how important it is to solve this issue as soon as possible, because longer probate cases put a strain on family members. We aim to find an amicable resolution as quickly as possible.
This information was posted on 08-23-2016 and does not constitute legal advice nor does it create an attorney-client relationship. The law changes on a daily basis, and the reader should engage an attorney through a written agreement before taking action in this area of the law.