Articles Posted in WHAT IS PROBATE?

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Personal representatives of Georgia estates perform a complicated task that carries a serious fiduciary responsibility and is closely monitored by the probate court system. Personal representatives, also known as executors and administrators, are either named in a will or appointed by the probate court to administer the assets in a decedent’s estate. Georgia probate law allows for personal representatives to hire legal counsel related to the Georgia probate process and also permits a fee to be paid for the work on the estate. The fee is a percentage based on the value of assets identified by the personal representative as estate property, the income generated by the assets in the estate during the probate administration process and the value of assets that are distributed by the estate at the end of the Georgia probate administration proceedings.

Georgia Code – Wills, Trusts & Estates – Title 53, Section 53-6-60

(b) If the personal representative´s compensation is not specified in the will or any separate written agreement, the personal representative for services rendered shall be entitled to compensation equal to:

(1) Two and one-half percent commission on all sums of money received by the personal representative on account of the estate, except on money loaned by and repaid to the personal representative, and 2 1/2 percent commission on all sums paid out by the personal representative, either for debts, legacies, or distributive shares;

(2) Ten percent commission on the amount of interest made if, during the course of administration, the personal representative shall receive interest on money loaned by the personal representative in that capacity and shall include the same on the return to the probate court so as to become chargeable therewith as a part of the corpus of the estate;

To properly understand the exact value of the assets and what percentage of these items is allowed as a statutory fee, it is important to consult with an experienced Atlanta, Georgia probate attorney. A probate attorney can also help the personal representative fulfill the fiduciary responsibility that is inherent in the task of administering an estate. The personal representative is required by law to fairly perform the duties and failure to do so can result in a lawsuit against the executor or administrator. Even if the failure to perform the duties properly is due to an innocent lack of understanding by the personal representative, he can be held legally responsible. Hiring a Georgia estate lawyer will not only limit the personal liability of the representative, but will also help preserve estate assets and keep the beneficiaries and heirs satisfied so that the estate can be administered as efficiently and quickly as possible.

Unfortunately, in my Atlanta, Georgia Probate Law firm many personal representatives only come to me for help once problems have surfaced during the probate process. In most of these cases, by the time I get involved a lot of damage has already been done that results in a loss of estate assets and a break down in the relationship between the personal representative and the Georgia beneficiaries and heirs. Most times these individuals are family members and, during the stress of the Georgia probate process, the conflict caused by innocent misunderstandings can permanently damage these precious relationships.
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As a Probate lawyer in Atlanta, Georgia, I realize that terms that are commonplace in our Georgia Probate Practice, are foreign to the layperson and even non-probate attorneys. To a seasoned attorney, Georgia Probate-Estate Administration can be relatively straightforward when the Georgia Estate Proceedings do not involve siblings or relatives who argue, objections court appointments, the sale of properties or assets, or caveats – which is a legal word for “objection.” This type of calm and smooth Georgia Estate Administration Proceeding is rarely the case. Conversely, probate is not a simple a matter to the heirs, relatives, and close persons to the decedent. Most Georgia Probate-Estate Proceedings are emotionally charged where rises to unprecedented levels. This is also true for disputes between all parties in interest to the Georgia Estate Proceedings. Moreover, the protracted nature of the Georgia Probate Proceedings can take a heavy toll in terms of the time consumed and emotional strain.

Probate Related FAQs

(1) What is the duration of the probate process?

In some cases, an Estate Administration Proceeding can be completed in a year. However, a couple of years is the norm and you should prepare to be patient and not worry about the day-to-day Estate Administration to which you are an interested party. In fact, opening the estate usually takes a minimum of 45 days. This involves, inter alia, completion and filing of papers, fixing a date for the hearing and issuing notices, letters, bonds, etc., and assumes all parties are amicable.

(2) How does one deal with creditors?

Creditors of the deceased must be issued notices after the submission of letters. In this connection, the mandatory claim period is 120 days during which the creditors may come forth with their respective claims upon the estate of the deceased.

(3) What are the expenses involved?

Probate involves what in legal parlance are termed costs and fees. Costs are expenses related to filing for opening the estate (In the Georgia, the fees and expense are in the hundreds of dollars. Moreover, the fees and expenses vary greatly from county to county. Recently, the fees have been rapidly rising and I would not even venture to guess the fees for the purposes of any future reason), issuing notices, and appraisal of assets by the court-appointed probate referee. Legal Fees are an estate expense. However, if the Georgia Estate is riddled with infighting, caveats (“objections”), hearings, and more, the legal fees, cost, and expenses can be significantly more.

(4) How does one distinguish between executors and administrators?

The distinction is based on the simple premise that the two function in two different situations – the court appoints an executor in the case of a testate death (“the deceased had a Will”) and an administrator in the case of an intestate death (“the deceased had no Will”). Executors are issued “Letters Testamentary” while administrators are issued “Letters of Administration,” both Letters outlining their court-conferred powers in respect of the estate. The term personal representative can be used to refer to both executor and administrator. Executors, administrators, and personal representatives have a Fiduciary Duty to heir and beneficiaries of the Estate. The Fiduciary Duty is one of the highest duties imposed by Georgia Law.

(5) Are there any cases in which a probate can be bypassed?

Yes, probate does not apply to assets such as insurance, retirement, and bank accounts if they name a living beneficiary. These assets are said to pass outside or probate and are Non-Probate Assets. In addition, in the case of joint assets, probates can be bypassed in case of death of the first owner (e.g. in the case of a jointly held home or bank account). In the state of Georgia, this also extends to assets forming part of a living trust. These are the general provisions and the particulars may vary depending on the laws that shall apply on a case-to-case basis. It is rare that there an estate is completely probate asset free, so all decedent’s estates should explore the whether the probate process is necessary. Even in cases where the Georgia Probate Assets total less than $10,000.00, there is a Georgia Probate Proceeding, which can be filed requesting the Probate Judge to Order “No Administration Necessary.” Therefore, there is really no Georgia Estate that can pass without touching base with the County Probate Court in some way, shape, or form.

Starting off, any executor, administrator, or personal representative undertaking to probate a Georgia Estate should consider retaining an experienced probate lawyer to assist with the Probate Proceedings. First, the choice to retain a lawyer demonstrates that you want a fair-minded unbiased person involved with the Georgia Estate Administration. This also shows the other interested parties to the estate that you welcome transparency in the Estate Proceedings and all interested parties are welcome to any information concerning the Estate Administration. Taking this action goes a long way to calming fears and suspicions of the “self-dealing personal representative all heirs and beneficiaries fear.” Realistically, it takes a huge burden off your fears of inadvertently breaching your fiduciary.
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When a person dies owning property in a state other than the state where their assets are subject to probate, the out of state property is subject to a form of probate referred to as Ancillary Probate. The ancillary probate proceeding is additional probate process performed in connection with the regular probate proceeding. The difference is that the out of state assets are governed by ancillary probate proceedings and the probate laws of the state where the assets are located. Ancillary probate is usually required when a will exists, as well as when a person dies intestate, or without a valid will. In my many years as an Atlanta, Georgia Ancillary Probate Attorney, I have overseen numerous cases involving Georgia ancillary probate issues and proceedings.

As a Georgia ancillary probate lawyer, I have found that real estate is the most common type of estate asset that requires ancillary probate. Examples where Georgia ancillary probate issues occur, are when the deceased lived in another state, but died owning vacation property in Georgia. Also common, is a scenario where a decedent moved to another state toward the end of their life, but died owning a house or other property in Georgia.

Tangible personal assets can also be subject to and require ancillary probate proceedings. Examples of these assets are mineral rights, oil or gas rights, livestock, vehicles registered out of state, and other assets located and/or registered outside the home state, such as boats or aircraft.

When ancillary probate is required, it naturally delays the settling of the estate. Expenses to settle the estate also increase, since it is necessary to hire a “local counsel” in Georgia to handle the ancillary probate proceedings in Georgia.

Ancillary Probate proceedings are complicated by the fact that probate laws vary by state. Just like probate laws, intestacy laws also differ by state. As a result, when a will does not exist, or if it is found to be invalid, the heirs may be surprised to find out how property is distributed under another state’s probate laws. This situation can cause discord (and surprises) among family members and other interested parties.

Because state probate and intestacy laws vary widely, it is necessary to consult with an experienced Georgia ancillary probate lawyer. Likewise, if there is a Georgia dispute or litigation involving ancillary probate, it is essential to seek the assistance of a Georgia ancillary probate attorney experienced in probate dispute resolution and estate litigation of ancillary probate assets.
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As an Atlanta, Georgia probate attorney, possibly the most frequent “Georgia probate lawyer question” I receive from the heirs and beneficiaries concerning the administration of a Georgia estate in county probate court is: How long will this take? (Or, should I say: “When will I get my money?”). My response depends heavily on how fast your Georgia probate law firm can get the petition completed for acknowledgment and perfect service on the heirs or beneficiaries, file the petition with the Georgia probate court, and how long you will be waiting on the probate court to rule on the petition.

Oftentimes, when there is no objection to the petition, the Georgia probate court will not require that a hearing be held, and issue an order opening or granting that administration of the estate begin. This, in large part, depends on the Georgia County Probate Court’s satisfaction with the petition for probate, the parties involved, and the detail and care with which the petition is drafted and filed and how this petition meets all the legal requirements set forth under Georgia probate law. This is notwithstanding any caveat/objection to the petition, which can prolong the process tremendously. My experience is that hiring an experienced Georgia probate lawyer can make the Georgia estate administration and Georgia probate process much faster and smoother.

Furthermore, do not let a let geographical distance be to your disadvantage. Our Firm represents numerous clients from other states with matters pending in Georgia probate courts. We are here to assist you from wherever you may be located and have the technical and communicative skills to do so effectively and cost efficiently.

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An executor or administrator is appointed by the GA probate court to perform the same administrative responsibilities when there is no Georgia will, the Georgia will fails to name an executor or no executor named in the GA will cannot or elects not to serve. Whether you are an executor or administrator, you must perform these important fiduciary duties imposed on you under GA probate law and in accordance with Title 53 of the Official Code of Georgia Annotated (O.C.G.A.), which governs “Wills, Trusts, and Administration of Estates.” Title 53 of Official Code of Georgia Annotated imposes significant and strict fiduciary duties and lofty legal obligations on the executor or administrator to the estate, beneficiaries, heirs, GA probate court and other “interested parties”.

These important legal obligations often have severe consequences if not performed in accordance with GA probate law and the fiduciary duties and executor or administrator has and the “personal representative” of the estate. By way of quick definition, GA probate law refers to both an executor and administrator the personal representative. In the alternative of performing all of the these extensive and burdensome fiduciary duties and administration obligations on their own, many executors or administrators retain an experienced GA probate law firm to guide them through their duties, obligations and to perform their fiduciary duties in accordance with GA probate law.

In the alternative, many GA probate and estate law firms step in and act as executor or administrator of the estate. One reason prudent Georgia executors or administrators retain an experienced GA law firm to assist them, guide them and prepare important legal documents for them, is that an executor or administrator who does not perform their fiduciary legal obligations can be held personally liable for their acts. This occurs more often than one might think. In my law practice as a GA probate attorney, I have seen all forms of serious accusations against executors or administrators and all forms of misdeeds done by executors or administrators. This holds true whether these mistakes any such were made because of poor performance, not performed at all or performed with unjust intent.

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Our Atlanta, Georgia estate law firm uses multiple vehicles when creating and an estate plan. One common estate planning tool involves joint ownership of an asset. Joint ownership of property means legal title is in two or more names. Generally this means upon the death of one legal owner, the property passes by operation of law to the other legal owner. Sometimes this type of ownership makes a lot of sense. For example, a husband and wife own their home in joint names. Upon the death of the first spouse, the home passes by operation of law to the surviving spouse.

There is no probate for most jointly owned property. There is no court involvement in the surviving joint owner assuming full legal title to the jointly owned property. Again, many times this is exactly what the decedent wants and the survivor has no probate concerns.

The lack of probate and the ease of property transfer are among the reasons a mother or father frequently add a child’s name to the mother’s or father’s bank account. But remember upon death the bank account, certificate of deposit or whatever property is held in joint names with a child transfers by operation of law to that child alone.

I’ve seen many surviving spouses name their children as equal beneficiaries in their will, but then put most if not all of their assets in joint names with just one child. Guess what happens on death? Despite the will directing that all the children share equally in the assets, there are no assets in the probate estate upon which the will operates to pass legal title. Instead, all the assets pass by operation of law solely to the child who is named as a joint owner.

Joint ownership can be a trap if you’re not careful and that is why the engagement of an estate planning attorney is essential to eliminate the many traps that you can fall into. In Atlanta, GA The Libby Law Firm crafts each estate plan with the individual in mind setting our goals for the minimum amount of probate and expense with the maximum amount of client satisfaction.
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