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Wills, Trusts & Estate Planning

Wills, Trusts & Estate Planning

Death is a difficult topic to discuss. We understand that. But worrying about what will happen to your loved ones after you are gone can also be troublesome. Proper estate planning with the assistance of an estate planning attorney can help relieve your concerns and assure that your loved ones are taken care of after you die.

Estate planning is far more than simply deciding who will get your property when you die. In addition to tax considerations, a comprehensive estate plan takes into account what will happen should you become incapacitated. For example, who will make medical decisions for you? Who will pay your bills? Who will take care of your children? Thinking about these things may not be pleasant, but it is absolutely vital. It is critical to consider all potential scenarios and work with an experienced estate and probate attorney to craft an estate plan that fits your needs.

Estate planning is not just for the wealthy. Most people over the age of 18 have assets: a car, furniture, bank accounts, cryptocurrency, a business, a house— you name it. You do not have to have a lot of wealth to need an estate plan. If you have assets and loved ones, you need an estate plan. It’s just that simple.

To ensure that your assets get to the specific people you choose, at the time you want, you need a customized estate plan created just for you by your estate planning attorney. For example, if you want your children to receive all of your money, but only after they turn 25, a properly drafted estate plan can ensure that happens. An estate planning attorney like Emerson Carey, Jr can also provide the legal documents that allow your loved ones to make decisions on your behalf should you ever become unable to make those decisions yourself.

Most adults, regardless of age, marital status, or wealth, need some form of estate planning. Your personalized estate plan might include the following legal documents:

  • Last Will and Testament
  • Durable Power of Attorney
  • Designation of Health Care Surrogate
  • Living Will
  • Revocable (or Living) Trust.

At Carey & Dobson, LLC, we use these legal documents to create customized estate plans to ensure your intentions are respected when you can no longer provide for your loved ones personally. Call us today at (404) 635-1112 with any questions or complete the easy form below and we’ll call you to set up an initial consultation.

PROBATE

What is Probate?

When a person dies, a probate attorney assists with the legal process for transferring the property of the “decedent” (the deceased person) to their heirs or beneficiaries. This process is called “probate.” You may be surprised to learn that probate is still necessary even if someone has a Last Will & Testament (“Will”). As long as an individual has “probate assets,” probate is required to transfer their assets after death.

 

Probate is a court-supervised process. This is a specialized area of law with many complex rules and specific procedures that must be followed. Georgia has specific probate rules, deadlines, and procedures that must be followed to properly administer an estate. It is the job of the personal representative (often called an “executor” or “administrator” in other states), to administer the decedent’s estate in accordance with those laws.

Even the simplest of estates can have complex legal issues that must be resolved. This is why it is best to always work with a probate attorney. Attempting to administer an estate on your own without the assistance of an experienced probate attorney frequently leads to significant frustration and confusion. Mistakes made in this area are costly: they cost you and the estate time and money.

How long it will take to probate an estate depends on several factors. Because each estate is unique, there is no single answer to this question. However, assuming the estate is a fairly simple one (with few or no complications or family fights) and if Federal estate taxes do not have to be filed, it can take anywhere from one year to six year to complete the probate process. If you do not have the assistance of a probate attorney, administering an estate will consume a significant amount of your time and energy and will probably take far longer.

Probate attorney Emerson Carey, Jr. specializes in Georgia Probate and Estate Planning Law. His team can help your family navigate this difficult process with care and compassion. Call us today at (404) 635-1112 with any questions or complete the easy form below and we’ll call you to set up an initial consultation.

Common Questions

Probate is the legal process of administering the estate of a deceased person. It involves validating the deceased's will, if one exists, and distributing the estate according to the will or, if there is no will, according to state laws.

The duration of probate varies depending on the complexity of the estate, the efficiency of the court, and whether there are any disputes. It can take anywhere from a few months to several years.

Not all estates need to go through probate. Small estates may qualify for a simplified process, and assets held in trusts or with designated beneficiaries (like life insurance policies and retirement accounts) often bypass probate.

An executor (or personal representative) is responsible for managing the estate through the probate process. This includes gathering and valuing assets, paying debts and taxes, and distributing the remaining assets to beneficiaries.

There are several ways to avoid probate, such as creating a living trust, designating beneficiaries on accounts and policies, holding property jointly with rights of survivorship, and making use of payable-on-death or transfer-on-death accounts.

If someone dies intestate (without a will), their estate is distributed according to state intestacy laws. These laws determine the heirs and the proportion of the estate each is entitled to receive, typically favoring spouses, children, and other close relatives.

Yes, a will can be contested on several grounds, such as lack of testamentary capacity, undue influence, fraud, or improper execution. Contesting a will can be a complex and lengthy process.

Probate costs can include court fees, attorney fees, executor fees, appraisal fees, and other administrative costs. These expenses vary depending on the size and complexity of the estate and the jurisdiction.

A will is a document that outlines how a person's assets should be distributed after death. A trust is a legal entity that holds assets for beneficiaries and can manage and distribute those assets both during the person's life and after death, often without the need for probate.

 If you are named as an executor, you should start by locating the will, consulting with a probate attorney, gathering information about the deceased’s assets and liabilities, and preparing to file the necessary documents with the probate court.

Disputes among beneficiaries can arise during the probate process. These disputes may be resolved through mediation, negotiation, or, if necessary, litigation. A probate lawyer can help navigate these conflicts and seek a resolution.

The executor is responsible for paying the deceased’s debts and taxes out of the estate's assets before distributing the remaining assets to beneficiaries. This includes income taxes, estate taxes, and any other outstanding liabilities.

Yes, an executor can be removed if they fail to perform their duties, engage in misconduct, or act in a way that is detrimental to the estate. This typically requires a court proceeding initiated by interested parties

Jointly owned property with rights of survivorship generally passes directly to the surviving owner and does not go through probate. However, joint tenancy without rights of survivorship and tenants in common do go through probate.

 Key documents needed for probate include the original will, death certificate, a list of assets and liabilities, financial statements, and any relevant legal documents related to the estate.

DYING INTESTATE IN GEORGIA

When a person dies without a will, they are said to have died "intestate." That person's assets will be passed down to their heirs through what are called "intestate succession" rules. 

 If there are assets, the estate may need to go through the probate process. During probate, the probate court will appoint an administrator. The administrator's job is to make sure the deceased's assets get distributed. If they want the job, a surviving spouse or sole heir will be appointed as the administrator. Otherwise, the majority of the heirs can choose the administrator with court approval.  

In Georgia, if you die without a will, any assets leftover after your debts are paid off will go to your living relatives. If you have no living relatives, then any assets will go to the state.

The law sets out which relatives will inherit your estate. 

If you have a spouse and/or kids, your whole estate goes to them. If you had a child who died before you, their share will be split among their children. If you die with:

  • A spouse but no children, your spouse will inherit your entire estate.
  • Children but no spouse, your children will split everything equally. This includes biological and adopted children. Both a spouse and one child, they will divide the estate equally.
  • A spouse and more than one child, your spouse will get ⅓ and the children will split the rest of the estate equally.

If you do not have a spouse or children, then: 

  • If you have living parents, your estate goes to them. 
  • If you do not have living parents, your estate goes to your siblings.
  • If you do not have a spouse, children, parents or siblings then, your estate is inherited in this order:
    • Grandparents,
    • If no grandparents, then split between aunts and uncles. If you have any deceased aunts and uncles, their children will inherit their share equally.
    • If no aunts and uncles, then first cousins will split your estate.

 

If you have none of the above, then a distant relative will inherit. Who gets it will be determined by a complicated formula found in OCGA sec. 53-2-1(b)(8).

Georgia has a very unique law to protect the well being of a surviving spouse and minor children that involves awarding a portion of the decedent's estate to the surviving spouse and minor children ahead of all creditors and beneficiaries. The law says that the surviving spouse and minor children of a testate or intestate decedent are entitled to year's support in the form of property for their support and maintenance for the period of 12 months from the date of the decedent's death

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