How to Avoid Probate in Georgia with the Right Estate Plan

avoiding georgia probate

The State of Georgia requires many estates to go through probate, which is a statutory legal process. Probate takes time and costs money. It also makes the financial details of the estate public information. Avoiding probate is a legitimate estate planning goal for many people. With advance preparation, your estate can avoid probate by creating the right estate plan with help from a Georgia estate planning lawyer.

What Is Probate?

Probate is a legal process established by Georgia statutes. The laws require many estates and assets to go through probate. But some estates and assets do not need to complete the process. When an estate goes through probate, the process takes time, creates costs for the estate, and is stressful for the deceased person’s loved ones. Probate also makes the financial details of the estate publicly available.

Whether a specific estate needs to complete probate depends on the nature of the estate and the assets in the estate. When the law requires probate, completing the process requires compiling and filing complex forms, managing and administering all the estate assets, settling debts and expenses, and eventually distributing the estate to the beneficiaries or heirs. The executor or administrator of the estate has responsibility for all probate administration details. A probate lawyer often assists to ensure that probate meets legal requirements.

Avoiding Probate in Georgia

Your estate plan determines whether your estate will go through probate after you pass away. With assistance from a knowledgeable estate planning attorney, many people can structure their estate plan to avoid probate. However, avoiding probate is a goal you should never attempt to accomplish on your own without help from a lawyer. Do-it-yourself or DIY estate planning has substantial risks.

A Georgia estate planning lawyer has several tools to use in structuring an estate plan to avoid probate. Since probate involves assets present in your estate when you pass away, these tools effectively remove the assets from your estate prior to death. But they do not deprive you of the use and enjoyment of your assets and property during your lifetime.

A trust is one of the most important strategies for avoiding probate. Another strategy involves titling assets in a way that avoids probate. Both of these approaches require guidance from a Georgia estate planning lawyer.

How a Trust Can Avoid Probate

A trust is a legal arrangement under which the grantor or settlor (person creating the trust) designates a trustee to manage and distribute assets according to the terms of the trust. The trustee may be a person or a financial entity. In some types of trusts, the person creating the trust may be a trustee. There are many different types of trusts, and each one works in a unique way.

For a trust to avoid probate, the grantor must transfer assets into the trust during their lifetime. Assets in the estate at the time of death must go through probate. So, a trust that becomes effective after death does not avoid probate. That is one important reason that assistance from an estate planning lawyer is crucial if you wish to use a trust to avoid probate.

A trust is not a complete estate plan. Other documents must be part of your estate for you to have necessary protection during your life. Another essential document in an estate plan with a trust is a pour-over will.

A trust has other benefits besides avoiding probate. Your trust can help you control distribution of estate property after your death, preserve your family’s legacy, and provide asset protection. A trust can accomplish other important goals as well.

How Titles to Assets Can Avoid Probate

An alternative to using a trust to avoid probate involves titling assets in a manner that keeps the property out of your estate when you pass away. This strategy works only for some types of assets.

One type of property ownership that avoids probate involves establishing title to the property as a joint tenancy with the right of survivorship. With this type of ownership, the asset passes immediately to the survivor on your death, so the property does not go through probate. Real estate is the primary type of property for which this approach is used. Similar types of joint ownership may be available for financial accounts that can be owned as pay-on-death (POD) accounts.

Whether joint ownership with survivorship is right for your estate plan depends on several factors. The title also must meet specific requirements. Before you change a property title to use this strategy, it’s essential to talk with a lawyer. The approach can have potential significant negative consequences in some situations. For example, adding someone other than a spouse to a real estate title can trigger substantial tax issues, particularly with regard to capital gains exemptions at the time of sale. When you consult with an attorney before changing title to real estate, you avoid making this or another other serious legal mistake.

Using joint ownership or pay-on-death accounts to avoid probate is a strategy that may avoid probate for some estates. However, this approach does not establish a complete estate plan by itself. Your lawyer will explain how this component works, and what other documents are necessary for an estate plan that includes this strategy.

First Step to Avoiding Probate in Georgia

If your estate planning goals include avoiding probate, your first step is talking with a knowledgeable Georgia estate planning lawyer. Your attorney will review all the options with you, and then help you decide on the right estate plan for your personal and financial circumstances. Getting sound legal guidance also ensures that your estate plan addresses all your short-term and long-term needs and goals, both for yourself during your lifetime and for your loved ones after you pass away.

Talk With a Trusted Georgia Estate Planning Attorney About Avoiding Probate

Our Cartersville estate planning practice at Asset Protection & Elder Law of Georgia focuses on helping clients find the best solutions for their concerns, including how to accomplish the goal of avoiding Georgia probate. We provide a broad range of legal services to clients throughout the communities northwest of Atlanta, including in Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County and Paulding County.

To schedule a consultation, call us at (770) 382-0984 or contact us through our online form.

You may also be interested in:

Updating Your Estate Plan: When Is It Necessary?

Does Your Aging Parent or Loved One Have the Legal Capacity to Make a Will?

What Are the Georgia Laws of Intestate Succession — and Why do They Matter to You?

Categories: Estate Planning