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Protecting What
Matters Most

Before You Go to Probate Court

When loved ones pass away, it's easy to get overwhelmed.  Among all the other emotions, many people feel anxious about how to address their loved one's property.  Some people even feel an urgency to start the process themselves and fill out paperwork at the probate court they don't fully understand.  Before taking action to administer a loved one's estate, you should always consult with a qualified probate attorney.  When it comes to addressing your loved one's property, there are a lot of different options and legal procedures involved, and the appropriate actions to take will depend upon a lot of factors, including:

  • Which family members survived your loved one;
  • Whether your loved one had a Last Will and Testament; and,
  • What type of property your loved one owned (as well as the value of that property);

Sometimes, addressing your loved one's property will require filing a case in probate court.  Other times, it could require something as simple as an affidavit.  Taking the wrong action to address your loved one's estate can cost you time, money, and even injure other heirs or beneficiaries.  Only a qualified probate attorney can advise you how best to proceed after learning all the facts.

Many people attempt to administer their loved ones' estates without consulting an attorney. This often results in multiple problems, including disputes between family members and clouds on title to estate property

Probate vs. Non-probate Assets

An important distinction to consider when addressing a deceased loved one's property is the difference between "probate" and "non-probate" assets.  "Probate" assets refer to property that becomes part of an individual's estate upon their passing and that normally requires some action by a probate court to transfer.  For example, if someone owns stocks or bonds in their name alone, that property would become part of their probate estate upon death and likely could not be transferred without an order from a probate court. "Non-probate" assets refer to property that does not become part of an individuals's estate upon death and that automatically gets transferred to another owner.  In some cases, if a deceased individual only owned non-probate assets, their surviving loved ones may have to do very little, if anything, to address the transfer of this property. Traditional non-probate transfers include:

  • Beneficiary designations: Many assets allow an owner to designate a beneficiary who will either assume ownership of that asset or receive a death benefit when the original owner passes away. These assets include retirement benefits, annuities, and life insurance policies.  If the designated beneficiary is alive and capable of receiving the property when the owner passes away, it would go to them directly. 
  • Jointly owned bank accounts: When multiple people are listed as owners of a bank account and one of those owners passes away, the surviving owners are presumed to receive the deceased owner's interest in the account by right of survivorship.  This means that the account goes to the surviving account holders automatically without passing through the deceased account holder's estate.
  • Jointly owned real property: Real property, such as homes and land, can also be owned by multiple people; however, the presumptions regarding multiple owners of real property are the opposite of bank accounts in Georgia.  When multiple people are listed as owners of real property on a deed, they are presumed to be tenants in common unless the deed expressly states they are joint tenants with right of survivorship.  That means when one owner passes away, their interest in the property passes to their estate instead of to the other owners unless the deed says otherwise.

Georgia also has several unique procedures that allow for property which technically does become part of a deceased person's estate to be transferred without court action:

  • Unpaid wages (O.C.G.A. § 34-7-4): an employer in Georgia can distribute up to $2500 in unpaid wages to a deceased employee's widow or to an employee's minor children if they were unmarried.  An employee can also designate in writing who they would prefer these funds to go to.
  • Funds on deposit (O.C.G.A. § 7-1-239): a bank can disburse up to $15,000 from a deceased individual's bank accounts to certain family members.  The bank can only disburse these funds if the deceased individual did not have a Last Will and Testament and if the appropriate family members present an affidavit with 45 days of death attesting to these facts. 
  • Income tax overpayments (O.C.G.A. § 53-1-6):  The IRS and Georgia Department of Revenue can issue a tax refund belonging to a deceased taxpayer to that person's surviving spouse, but only if that refund does not exceed $2500.
  • Vehicles: The Motor Vehicle Division (tag office) can transfer title to a deceased individual's vehicle based upon an affidavit of inheritance.   This affidavit must attest that the deceased individual did not have a Last Will and Testament (or had a Will that will not be probated), that the deceased individual did not owe any debts, and that all of the heirs have amicably agreed on who should receive the vehicle. 
To avoid probate, you should update you beneficiary designations periodically
Everyone should periodically review the titling of their major assets and beneficiary designations for their life insurance, retirement benefits, and other accounts to ensure they are up to date

Additional Steps After a Loved One Dies

Regardless of whether you need to take legal action to address a deceased loved one's estate, there are several practical steps you can take to help preserve and protect that estate while we determine the best course of action

  • If your loved one was receiving Social Security benefits (or had worked long enough to establish a record for benefits), contact your local Social Security office, or call 1-800-772-1213. Notifying the Social Security Administration as soon as possible can prevent an overpayment of benefits being issued to your deceased loved one.  A surviving spouse or child may also be entitled to a lump sum death benefit or ongoing survivor benefits.
  • Cancel any of your deceased loved one's subscriptions that charge periodic fees, such as magazines or streaming services.
  • Notify your loved one's banks and credit card providers of their death so that their accounts can be frozen.  Anyone could easily misuse these accounts if they have access to your loved one's debit or credit cards.
  • Make sure your loved one's home is secure and maintained. Homes that are clearly unoccupied can become a target for break-ins.
  • File a change of address with the post office to redirect your loved one's mail so that you don't miss any important notices.
  • Talk with your deceased loved one's insurance agent about extending coverage on their home and vehicles in case that property is damaged in the interim.  Some insurance companies are wary about covering vacant properties, so you may have to obtain new coverage.

More Information About Probate Actions

Read some additional articles about the disposition of property and the administration of estates before scheduling your free consultation.

How to Probate a Will

This article provides a general outline for the probate of a Last Will and Testament in Georgia.

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