Answers to Common Questions and Situations

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Is Probating Both Parents’ Estates Necessary?

When a parent passes away, the void can feel insurmountable. But losing both parents? It’s an experience too difficult to put into words.

As you come to terms with loss, you may be navigating through legal obligations that seem very complex. You may find yourself asking questions like:

  • How does probate work when both parents have passed?
  • What happens to property and financial assets when a person dies?
  • What steps should I take if my parents did not leave a will?

If you are in this situation, this article will guide you. We will walk you through the critical steps and provide insights into what you can expect during the probate process.

Whether you’re an only child or one of several siblings, our goal is to make the probate process as straightforward as possible.

Locating the Will

Your parents’ will acts as your guide in handling their estate. So, the first thing to do is find this crucial document.

Most often, you will discover the will in a safe or lockbox. Some people choose to keep it with their attorney or at a bank. If your parents had a conversation with you about it, that could simplify the process.

Once you have located the will, identify who is named as the executor in it. They will start the probate process by submitting the will to the probate court. They will oversee the estate administration and distribute assets as stated in the will.

What if the Will is Missing or Cannot be Located?

Do I have to probate both parents' estates?

Coming up empty-handed when looking for the will can be stressful, but it is not a dead end.

In this situation, you can initiate probate based on intestacy laws, which determine how assets are distributed without a will.

You may be wondering if probate is necessary at all, and this article will explain why we recommend it.

For trickier situations like this, seeking assistance from a probate attorney to effectively navigate the process will be a smart move.

The Next Step: The Probate Process

Once you have initiated probate, the following three phases come next:

  1. Appointment

    This phase jumpstarts the probate court proceeding where the court officially assigns one person—a personal representative—to administer the deceased person’s estate. If a will exists, it usually names a person called an executor for the role. This person will carry out the wishes of the deceased person as outlined in the will.If there is no will or it cannot be located, surviving family members can nominate someone called an administrator. The executor and administrator share similar responsibilities, except the executor follows the terms of the will while the administrator follows intestacy laws to distribute assets of the deceased person’s estate.

  2. Administration

    During this phase, the personal representative gathers all the estate assets, pays off any debts and taxes, and prepares an inventory for court review. When assets fall short of paying debts, the personal representative may have to sell some of the deceased’s property to cover these debts.Occasionally, some estates still wind up with insufficient assets and leave heirs without an inheritance.

  3. Distribution/Discharge

    Finally, the personal representative distributes any remaining assets to the heirs or beneficiaries. They will then file the necessary paperwork requesting to be discharged from their responsibilities related to the estate.

How long does Probate take in Georgia?

The Probate process is not a quick process. On average, it can take anywhere from 12 to 18 months, but it could stretch for years in complicated cases. A lot depends on the complexity of the estate, how well family members cooperate, and the court system.

Navigating the Probate Process

Is probating both parents’ estates necessary?

You may wonder if you have to go through the probate process twice—once for each parent.

The answer often depends on how their assets were held and whether both parents had wills. Here are three possible scenarios:

  1. Both parents have a will

    When both parents have valid wills and they pass away together, their assets’ distribution follows their respective wills’ instructions. Each parent’s will lays out how their assets will be shared among beneficiaries.The wills need to be clear, current, and legally valid. The named executor for each will takes charge of carrying out the will’s wishes, including distributing assets and settling debts.

  2. Only one parent has a will

    If only one parent has a valid will, both parents’ estates may go through probate, especially if they passed away simultaneously.The parent with a will goes through probate according to its terms. Their assets get distributed as specified, and an executor oversees the process.For the parent without a will, Georgia’s intestacy laws apply. These laws determine the order of inheritance among family members. If there’s no will, a court appoints an administrator to manage asset distribution under these laws.

  3. Neither parent left a will

    When neither parent left a will, Georgia’s intestacy laws come into play. These laws outline how assets are distributed when someone dies without a valid will. The specifics vary depending on the family situation.

In many cases, you can handle probate for both estates together. It is a good idea to consult a probate attorney to tailor the process to your unique situation.

What happens to the deceased parents’ property?

How a property is titled matters since it determines who inherits it and how. For property shared between two or more people, the deed may be titled in two ways:

  1. Joint Tenancy With Rights of Survivorship (JTWROS)

    Under JTWROS, the surviving owner typically inherits the other owner’s share upon their death. Usually, this transfer of ownership doesn’t require probate.

  2. Tenants in Common (TIC)

    With TIC, each owner has a specific share of the property. This share does not automatically pass to other tenants when one owner dies. Instead, it becomes part of the deceased’s estate and goes through probate.

In any case, we recommend reviewing the property’s deed with an experienced attorney to ensure proper handling.

Probate Considerations for Various Property Ownership Scenarios

Real estate titling is not one-size-fits-all. Different structures have different impacts on probate.

When Only One Parent is Listed on the Deed

If only one parent is listed on the property deed, that property becomes part of that parent’s estate. It will likely have to go through probate unless other mechanisms, like a living trust, come into play.

When Both Parents are Listed on Different Properties

When your parents owned multiple properties, and each was listed on different deeds, you may find yourself entangled in multiple probate proceedings. Each property will have to be probated based on the specifics of its titling and the laws governing it.

How to Handle Financial Assets in Probate

A deceased person’s financial assets typically fall into two categories: probate and non-probate assets.

What are Probate Assets?

Probate assets are those solely owned by the deceased without a designated beneficiary. This includes bank accounts in their name only, individual stocks and bonds, and even personal belongings like cars and jewelry.

What are Non-Probate Assets?

Non-probate assets, on the other hand, have a designated beneficiary or joint owners. Think of retirement accounts, life insurance policies, or jointly owned properties. These assets usually transfer directly to the named beneficiary without probate.

What if my parents’ financial accounts don’t have a beneficiary?

If there are financial accounts that do not have a beneficiary listed, those accounts typically may have to go through the probate process.

For example, if a few accounts solely bear the father’s name without beneficiaries—and the same situation applies to the mother’s accounts—probating both parents’ assets might be necessary to be appropriately distributed.

Are There Any Differences in Probating Both Parents’ Estates?

You may think losing both parents would double the paperwork, but that is not always the case. Probating both parents’ estates can often be synchronized to streamline the process. However, the basic steps remain the same.

How Can I Protect My Interests and Rights During the Probate Process?

There may be instances when adult children clash over inheritance. For example, if you have spent more time caring for the deceased parent, you may feel entitled to a larger share of the estate. To advocate for yourself, stay informed. If you have serious concerns, especially about contesting aspects of the probate process, seek advice from a probate attorney.

Can I Contest the Probate Process if I Disagree With Certain Aspects?

Yes, a family member can contest the probate process, but it is not a straightforward process. Contesting any part of probate demands substantial evidence of wrongdoing or neglect, so it is advisable to have a skilled attorney on your side.

How to Distribute Assets Correctly

If a will exists

Having an estate plan that includes a will definitely simplifies things. The will spells out who gets what, and it is the executor’s job to make sure this happens. After debts and taxes are paid, assets are typically distributed according to the will’s instructions.

While the process is straightforward, there can be unique situations when you are probating for both parents’ estates.

For example, one parent’s will might state that the estate goes to the other parent. If the beneficiary parent also passes away, the inheritance may need to go into their estate and then distributed correctly according to its terms.

If a will does not exist

When there’s no will, probating both parents’ assets becomes a little more complex. Georgia’s intestate succession law comes into play. These laws dictate how assets are divided among surviving relatives. Generally, the surviving spouse and adult children are first in line, followed by more distant relatives if none are available.

Several factors must be considered when making intestate distributions in a two-parent estate, such as:

  • Were the parents married to each other when they passed away?
  • Did the parents remarry other spouses before they passed?
  • Did the parents have biological children or adopt children with a new spouse before they passed away?
  • Did either parent have children who also had their own kids but have passed away?

These examples and more can drastically affect proper distribution, so we recommend consulting a Probate Attorney about administering and distributing the estates.

Your Next Step

Probating both parents’ estates can be complex, and even a small mistake can result in delays or legal challenges. An experienced probate attorney can guide you through each step, ensuring you fulfill your legal responsibilities as an executor or heir.

For example, a probate attorney can help you:

  • Identify and assess probate and non-probate assets
  • Understand tax obligations and deadlines
  • Facilitate asset distribution according to the will or Georgia’s intestate laws
  • Address any family disputes or legal challenges that might arise

Remember, probate proceedings involve more than just filling out paperwork. It’s about safeguarding a legacy while balancing emotional and legal complexities.

Having an expert in your corner can make the process smoother and less stressful, allowing you to focus on what really matters: honoring the memory of your loved ones.

If you find yourself needing more specific guidance or legal expertise in the probate process, particularly if both parents have passed away, don’t hesitate to reach out to us. Contact our office at (770) 796-4582 to set up a consultation.

Download the Georgia Probate Handbook.

Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.

    About the author

    Erik J. Broel
    Founder & ceo

    Erik founded the firm in 2009. He sees it as his personal mission to demystify the process of handling an estate or trust, and to help people by making the complex estate process simple and accessible. He believes there is always a better way to do things, and loves finding new and innovative ways to deliver better, more effective service that solves the client’s key problem or issue, and improves the client’s life.

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