Settling a probate estate in Cobb County requires quite a bit of time and a lot of organization. It has the potential to be a long, drawn-out process depending on the state of affairs of the deceased and how easy it is to work with the probate court. However, if you’re well-equipped and prepared to deal with the role and duties of an Executor, you may be able to settle the estate in a timely, uncomplicated manner. Georgia probate attorneys have put together these five steps for settling a probate estate.
- Gather Documents
The Last Will and Testament is the first document to come to mind when a person passes away and an Executor needs to start handling the estate, but it’s not the only one. Deeds, bank statements, insurance policies, and any other documentation relating to personal or business finances need to be located. In addition, numerous documents and forms must be filed with the probate court in order to get the probate process started.
- Notify the Proper Agencies
It is the Executor’s responsibility to notify any agencies the deceased had dealings with at the time of death, including banks, utility companies, or any other business where the deceased had an account. In addition, government agencies such as Social Security, Medicaid, and the VA need to be notified if the deceased was receiving benefits at the time of death.
- Create an Inventory and Have Property Appraised
In most cases, the probate court will require a thorough inventory of the deceased’s assets and property. This is for numerous reasons including estate tax purposes and beneficiary designations. It may also be necessary to have some property appraised, especially if it is collectible. This includes automobiles, art, jewelry, antiques, and even items such as baseball cards or comic books.
- Collect Debts and Pay Bills
As we talk about below, one of an Executor’s duties is to make distributions to beneficiaries. Before this can happen, the assets in the estate must be fully accounted for, and this includes debts owed to and by the estate. Pay any bills owed by the estate, but also seek out any money that may be owed to the estate in order to begin making the correct distributions to beneficiaries.
- Make Distributions to Beneficiaries
The Last Will and Testament will direct how distributions should be made to beneficiaries, but it is the responsibility of the Executor to make those distributions. All distributions must first be approved by the Cobb County probate court in order to ensure that all debts have been paid by the estate before beneficiaries receive assets. This is a complicated step and may require the help of a Cobb County probate lawyer.
If you are an Executor and need help settling an estate, or if you would like to know how you can possibly avoid the probate process through the use of a Revocable Living Trust, please give our East Cobb probate law firm a call at 770-425-6060, or send us an email at steve @ georgiaestateplan.com to set up a consultation so you can see how we may help you.
Sure, the typical probate lawyer in Cobb County might like a surprise birthday party or an unexpected bit of good news, but when it comes to probate, the fewer surprises, the better. One of the main purposes of estate planning, after all, is to detail how an individual would like for things to proceed after his or her death.
Probate is the process an estate goes through in order for it to be divided up properly. The first goal of the Cobb County probate lawyer is to make sure that the estate is administered according to the wishes of the deceased. These wishes are usually made clear in a will or through a trust. Additionally, however, the probate process is also important in that it makes sure that the wishes outlined in the will meet legal standards.
While probate lawyers in Cobb County will encourage their clients to discuss the provisions of their will or trust with those affected by it, there are plenty of unfortunate circumstances that keep people from doing so. Oftentimes, this is where the probate lawyer will see the biggest surprises. For example, a spouse or adult child may be shocked to learn that they have inherited far less than they expected, or even been cut out of the will entirely.
There have even been cases where an entire family was surprised to discover that their loved one has chosen to leave some or all of the estate to a third party, such as a charitable cause. When this happens, the probate lawyer may help the family attempt to contest the will, but the ultimate decision on the distribution of assets will be up to the courts.
As you can imagine, when surprises like this come up, it’s uncomfortable for all involved. Different parties may choose to hire their own lawyers, and the situation can end up pitting formerly loving family members against one another. It’s not something that Cobb County probate lawyers look forward to.
While the probate lawyer is aware of how long the process can take, this often comes as a big surprise for clients. A good Georgia probate attorney will help to guide everything through probate as quickly and smoothly as possible, but it can still take from several months up to a couple of years, depending upon what other “surprises” make themselves known along the way.
If you have lost a loved one and don’t know where to start in handling their estate, we can help. Download my FREE Georgia probate guide, “Seven Steps To Handling Your Loved One’s Estate,” at this page. If you need our help to get started now, call us at 770.425.6060 or email me at firstname.lastname@example.org.
Most people are familiar with a basic Last Will and Testament, but very few people in Marietta know what a Pour-Over Will is.
Essentially, a Pour-Over Will is used in conjunction with a Trust, usually a Revocable Living Trust, and it directs that any assets you own outside of the trust at the time of your death should be placed into your trust and distributed according to trust guidelines.
Here’s an example of how this works. Say that at the time of your death you owned a piece of property that you forgot to title in the name of the trust you created with your Marietta will and trust lawyer. Because of this oversight, the asset would fall “outside” of your trust and would not receive the protections that you had hoped for when you created your estate plan in the first place. However, if you had a “Pour-Over Will,” even though you made an error, the asset would still get directed back into your trust anyway.
In this regard, the pour-over will acts as a safety net to make sure that all of your solely-owned assets will be distributed according to the terms of the trust after you pass away.
Marietta wills and trusts lawyers tell their clients that unlike a Last Will and Testament, one of the greatest advantages of using a Pour-Over Will is that it does not have to state how the estate assets will be distributed. Instead, it merely has to state that the assets should go into the trust. This is an important aspect of estate planning for anyone who is concerned about privacy and does not want their personal affairs made public through the probate court.
However, just like a Last Will and Testament, the Pour-Over Will is subject to probate proceedings in general. The length and complexity of the proceedings depends on the amount of assets that were held outside of the Revocable Living Trust. The trust will have to continue to exist for however long the estate is in probate, so Trustees should understand that their fiduciary responsibilities may extend for longer than they thought if any property is held outside the trust and must go through probate.
If you have any questions about the difference between a Last Will and Testament and a Pour-Over Will, or if you’d like to review your existing estate plan to make sure your assets will be distributed according to your wishes after you pass away, please contact our Marietta Wills and Trusts law firm at 770-425-6060 to set up a Georgia Family Treasures Planning Session. These sessions are valued at $600, but you can get yours at no charge by mentioning you read our blog.
Many people believe that it would be easier for their loved ones if they transferred ownership of their home before they need to. Bypassing probate in Cobb County, they believe, will be easiest for everyone. That could be true. However, there are several risks to consider that might harm you or your heirs.
Hazard #1 – You could create tax problems
If you transfer your principle residence you could be disqualified from part or all of the capital gains tax exclusion causing an unnecessary tax liability. This means that if you decide to sell after sharing ownership of your home with your children, they would have to pay capital gains taxes on the increased value of the home. This is really bad news if you’ve lived in your home for many years and the value of the property has significantly increased.
Hazard #2 – House value counts against you if you need Medicaid
If you transfer your house within 5 years of needing Medicaid assistance for a nursing home, you will probably be ineligible. Medicaid has a five year “look back” period where any monetary gifts or property transfers are considered which may take you above the income requirements.
Hazard #3 – Your loved one could get divorced
If you transfer an ownership interest of your home to your child, and then the child gets divorced, your ex-son/daughter-in-law might be entitled to part of the value.
Hazard #4 – Your child could file for bankruptcy
When you share ownership of a home with your child, you also share exposure to one another’s financial problems. If you are moving to an assisted living home and plan to use the equity in your home to pay the rent, you may have a bad surprise if the bankruptcy court demands some or all of the proceeds of the sale to pay your child’s creditors.
Hazard #5 – Something happens to your child
If something unexpected happens to your child and they become incapacitated or predecease you, you could run into real trouble. If, for example, your child becomes disabled and needs Medicaid coverage, he could be ineligible due to his share of the home.
Hazard #6 – Your child is a problem
After you transfer ownership of your home, you must all agree if you decide later to sell the home or even do renovations. If your child doesn’t agree with you, they can stop you. I know that it is hard to imagine your dear son or daughter in this light, but it happens more often than you can imagine.
The bottom line here is that you need to be very careful when considering transferring or sharing ownership of your home with your children. There are several other options but it is important that you work with a qualified estate planning and trust attorney in Marietta GA who knows how to utilize better (and safer) legal strategies to accomplish your goals.
Now that the champagne has been consumed and the party horns have been put away, it’s time to really begin the New Year. You may or may not be sticking to those resolutions you made on January 1st, but even if they are a vague memory at this point, I challenge you to add one more resolution to your list — review your estate plan.
Here’s a checklist to get you started:
- Look for your estate planning documents and see if they are still in the place where you left them. Check your fireproof safe, safety deposit box, or other location where you store the actual documents. In addition, make sure your electronic copies are where you last left them. You may have chosen to keep them on a CD or on your home computer, in any case, make sure they are still accessible. Additionally, make sure your heirs, executor, or trust administrator know where they are.
- Review your children’s long-term and short-term guardian nominations. Has anything happened either in your children’s lives or your guardian’s lives that may make you rethink things? Has the person (people) you’ve named as guardians moved, had a child, divorced, or remarried? If so, does this impact your decision? Have any changes happened that might make you rethink the people you named as short-term guardians?
- Did any of your children turn 18? If so, you need to make sure that they have the proper legal documents in place. They may not have many assets so they may not need a full-blown estate plan, but they will need a signed healthcare power of attorney and living trust in case something happens to them. Without these legal documents in place, you may not be able to speak for them.
- Update, review, or consider a pet trust. If you currently have a pet trust, has anything happened that would make you rethink it? Did something happen to your pet that may mean there are more medical expenses than you thought? Did you get a new pet this year that you want to be sure will be cared for if something happens to you?
- Think through 2014 and list any substantial assets you may have acquired. If you have new assets, make sure they are transferred into your trust. If they aren’t, those assets could end up in probate even though you thoughtfully created a trust to avoid this.
- Review and think about your asset distribution. Does your trust still reflect your wishes for how you would like to distribute your assets? Again, life events such as births, deaths, marriage and divorce may impact the decisions you made about this.
- Check your insurance policies. Does your life insurance still reflect an amount that would support your family if something happens to you? Has something happened in the past year that would require you raise that amount?
- Are you still happy with your decision regarding who should administer your estate? Is he or she still willing to accept this duty? Has anything happened in the last year that would make you wonder whether this person is still able to perform this function? If you are in doubt, you may consider discussing the person you chose and make changes if necessary.
- Update your family’s legacy. Each year you should update your written legacy whether it is in writing or recorded. Be sure to note family member milestones and accomplishments. This will most likely be the most valuable part of your estate plan so be sure to spend time on this.
As I tell my clients, your estate plan is a document that changes just as your life changes. While every change in your life doesn’t mean that you need to update your estate plan, it is important to think through the past year’s events and experiences to make sure that your estate plan will still take care of your family just has you planned.
Estate planning lawyers in Cobb County have always had to keep up with the times, and this is just as true in Georgia as it is anywhere else. Often these changes include things like new legislation, but there are other factors that need to be considered, such as differing lifestyles and advancing technologies. Have you ever stopped to wonder what happens to your Facebook when you die?
It’s a question that even the legal world is starting to address. Of course, Facebook is only one of the social networks out there, and it’s likely that more will emerge, with some taking over the spotlight. For now, Facebook is certainly one of the most talked about, as Facebook has reached a billion users. As of November of 2012, Twitter had 500 million, Google+ had 400 million, Skype had 280, and LinkedIn had 175 million. And this represents only a fraction of the social networks that are out there.
New York, Oklahoma, and Nebraska were some of the first states to start taking a look at how estate planning attorneys might assist clients in designating personal representatives to take over their social media accounts should the original owner become deceased or incapacitated. Some people are referring to this as an “online executor,” and it’s even being suggested to officially name this person in the will or trust.
What About Facebook?
While it still remains to be seen how things will play out, especially as newer technologies become part of the Cobb County estate planning landscape, Facebook (as well as many other social media networks) already does have a system in place for dealing with the death of a user.
When someone passes away, Facebook allows another person to notify them. They will need to be able to supply the individual’s full name (used on the account), email address used to create the account, and the URL of the deceased’s profile. This is done through a form. In addition, the person must report their relationship with the deceased.
At this point, Facebook will ask what should be done with the profile. Some families prefer to take the entire thing down. Others choose the option of “memorializing” the page. When this happens, Facebook allows only those who were already confirmed as friends to see and post on the page. Many friends do this as a way to leave memories or express condolences to those left behind. If the account has been memorialized, it is removed from the general search function.
Another common option is for people to create their own pages in memory of a friend or family member. This can even be done in conjunction with the memorializing of the original page. The benefit is that this allows those who were not confirmed friends on the original account to leave messages, post photos, etc.
So, do you need to get a Cobb County will lawyer involved when it comes to your Facebook account? The answer to that is “maybe.” If your account is part of your business strategy, for example, you might find it to be even more imperative. Even for those who just use Facebook and other social media for personal communication, naming an online executor is something to consider.
Our Cobb County wills, trusts and probate law firm can help you get started in creating a digital asset protection plan that best meets your personal or business needs. For more information or to schedule a complimentary Georgia Family Treasures Planning Session, please give our office a call at 770-425-6060.