Frequently Asked Estate, Probate, and Inheritance Questions.
Many times, clients come to us with a lot of questions about their estate or trust situation. Below are some of the most common questions along with general answers about what to expect. We hope it helps you start to make sense of your situation.
If you do not find the answers you are looking for on this page, pick up a copy of our E-book, The Georgia Probate Law Handbook or contact us to set up a complimentary consultation with someone from our Georgia probate law team.
Is probate necessary?
Georgia probate law does not require an estate to be opened with the probate court. As a practical matter, however, most, if not all, estates should go through probate to protect against liability and prevent potentially costly problems in the future.
How long will probate take?
Probate in Georgia will take at least six months to a year, or possibly longer dependent upon the size of the estate.
What legal duties does an executor or administrator have?
Executors and administrators have many legal duties under Georgia probate law. Generally, an administrator or executor must ensure that Georgia law is complied with in managing the estate and distributing estate property and funds. Also, an executor or administrator owes a fiduciary duty (which is the highest duty under the law) to the heirs and beneficiaries of the estate. This means the executor or administrator must take care to make sure that all of his or her actions are in the very best interest of the estate. In fact, an executor or administrator must be careful not to get involved in a situation where there is the appearance that the executor or administrator may be doing something for their own gain that is to the detriment of the estate. If an executor or administrator transgress their fiduciary duty, then they may be held personally liable.
Am I entitled to anything from the estate?
The answer to this question depends on a number of different factors.
First, is there a will? If so, and if the will is valid, then the beneficiaries named in the will are likely the only ones who will inherit the estate.
If there is no will, then the heirs (as determined by Georgia probate law) will inherit the estate.
Once you have determined whether you are entitled to anything from the estate, what you receive will depend on the size of the estate as compared with the amount of debts of the estate. However, a good probate lawyer will be able to reduce the debts of an estate to increase the amount available to the heirs and/or beneficiaries.
What happens if someone violates the terms of the will?
If the will is valid, then Georgia probate law requires that it be followed, except when following it would violate another provision of the law. If the will is not being followed, then an interested party,typically an heir or beneficiary, may petition the probate court and bring the issue in front of the probate judge.
In some circumstances, someone will be taking estate property for their own benefit and depriving the beneficiaries of the will of their inheritance. In this type of case, it is important to act very quickly to preserve the estate because some property may be irreplaceable. In addition, if the wrongdoer spends the estate’s funds, it may be very difficult to recover the funds.
If you are in this situation, we recommend that you speak with a probate law firm right away.
When is a will invalid?
There are a number of reasons why a will could be invalid in Georgia. First, if the person who wrote the will wrote another will later, the second will likely revoke the first will, rendering the will invalid.
Second, if the will is not signed properly, then it will be invalid under Georgia probate law. Georgia law requires that a will be signed by the Person making the will (testator) in the presence of two witnesses, who must also sign the will. It is best that neither of the witnesses be a beneficiary of the will, but that alone will not invalidate the will. It does mean, however, that the beneficiary signing the will may not receive property under the will (unless certain other circumstances apply).
Third, a will may be invalid if it is signed at a time when the person making the will is not competent to make a will, or if the person is under the undue influence of another person. These situation are unique and can be challenging to prove. Every situation is different and the particular circumstances surrounding the will signing play a major role, we recommend that you speak with a probate law firm if you are in this situation.
There are other reasons why a will may be found invalid, although the three above are the most common.
What if someone has abused a power of attorney?
This can be an extremely serious situation. There are two things that may be done.
First, someone who has abused a power of attorney should not be in control of an estate. Unfortunately, we find that many times the person named in the power of attorney is also the person selected to be the executor of the will.
Fortunately, Georgia probate law provides a way to object to the named executor’s appointment if it can be demonstrated that the person abused a power of attorney. You should be aware that the deadline for this objection can be very short, so you will need to act quickly when you receive notice that a petition has been filed.
Second, once someone other than the person who abused the power of attorney is acting as executor or administrator, then the estate may pursue a claim against the wrongdoer for the harm done by their actions.
What if someone is taking or misusing estate property?
Georgia probate law provides methods to block someone from misusing or taking estate property, but you will need to act swiftly to stop them.
The executor or administrator of the estate will need to file a petition with the court. We recommend that the petition be filed as soon as possible. If the property of the estate is very valuable, then it may be prudent to request an emergency order from the Superior Court to maintain the status quo until the court can act to sort out the situation. Depending on the circumstances of the case, it may also be prudent to alert local law enforcement.
These situations generally are very complex, and it is best to consult a probate law firm right away.
Which creditors must be paid?
Under Georgia probate law, all valid creditors of an estate are entitled to be paid from the proceeds of the estate. That means an executor or administrator can be forced to sell property of an estate, such as a home, business, or vehicle, if it is necessary to pay one or more creditors of the estate. Georgia probate law has a specific order in which creditors are to be paid.
A capable probate law firm should be able to reduce creditor claims to increase the amount received by the family, or to curtail the likelihood of having to sell property that the family would like to keep.
Can Medicaid claims be avoided?
Medicaid claims can be confusing and scary. Usually, Medicaid will begin by sending a letter to the family notifying them of the claim, stating the amount of the claim, and requesting information.
It is very important that any communications with Medicaid be handled properly. Medicaid has very strict requirements that it must follow in order to recover funds from an estate. If you have received a claim from Medicaid, you should speak with a probate law firm before you respond so that you have the best chance of avoiding the claim.
Who are the heirs in blended families?
The heirs are the natural and adopted relatives of the deceased. As a result, a step child will not be considered a legal heir of the deceased unless he or she was formally adopted by the deceased.
What if life insurance refuses to pay a claim?
Dependent upon the reason that life insurance has refused the claim, you may have options available to you. The most common reason that a life insurance company will refuse to pay a claim is because the policy had lapsed due to nonpayment. Under Georgia law, a life insurance company must provide a 30 day grace period within which to pay the premium. During that grace period, the policy is considered to be entirely effective.
Often, the insurance company will send a notice to the insured notifying him or her that the policy will be cancelled if the premium is not paid. If this notice letter is not written correctly, then the insurance company may inadvertently extend the grace period beyond the 30 days required by Georgia law. If that happens, then the insurance company must pay the claim.
What happens to a business owned by the deceased?
It is dependent upon how the business is set up.
If the business is a sole proprietorship (never incorporated), then the business cannot exist apart from its owner. The assets of the business will all be considered a part of the deceased’s estate. The business will typically stop doing business when the deceased passes away.
If the business is a corporation or LLC, then it will continue in existence even though an owner died. Meaning that a trusted employee or family member may be selected to continue to run the business while the estate is still pending.
Ultimately, the business will be transferred to a family member or employee or sold. These types of estates are usually complicated. You should speak with a probate law firm for help.
What if there is a trust?
A trust is a vehicle that is sometimes used in estate planning to avoid probate, or to withhold property from a person until he or she meets a certain condition or reaches a certain age.
If the trust was created during the deceased’s life, then it is refered to as a living trust. A living trust is usually created to avoid probate or to take advantage of favorable tax laws. If all of the property owned by the deceased is owned by the living trust, then probate can be avoided. The property held by the trust will be distributed to the trust beneficiaries according to the instructions in the trust’s governing document.
If the trust is found in the deceased’s will, then it may or may not be used. Frequently, the trusts found in a will are called contingent trusts, meaning that the trust only comes into existence if a certain condition is met. Most often these types of trusts are used to make sure that a minor child does not receive property from an estate until he or she reaches a certain age.
These are the two most basic uses for a trust. If your loved one’s estate involves a trust, we recommend that you speak with a probate law firm.