FAQ

A will contest (called a caveat in Georgia) ensues when someone brings a legal challenge to a will filed for probate. When probate is initiated, the probate court allows interested parties an opportunity to object to the will. The challenger (called a caveator in Georgia) seeks to overturn the entire will or one or more provisions of the will because he or she believes the will is invalid in some way. State statutes determine how the will contest proceeds in the judicial system and mandate that a will challenge be brought within certain time limits.State statutes also provide the grounds for contesting a will. Normally, the grounds include incapacity, undue influence, fraud, improper execution, or the existence of a later valid will.

Incapacity

A testator must have “testamentary capacity” in order to make a valid will. Generally that requires that the testator be of “sound mind,” as shown by the testator’s capacity to (1) understand the nature and extent of his or her property, (2) know the persons who would naturally benefit from the will, and (3) realize that the will he or she is executing does indeed makes a disposition of his or her property. A testator may be shown to lack testamentary capacity if it can be proved that at the time of executing the will he or she exhibited signs of dementia or mental illness or was under the influence of alcohol or drugs. Generally, the mere fact that a testator shows signs of advancing age, feebleness, or eccentricity is not enough, in and of itself, to prove testamentary incapacity invalidating a will.

Undue Influence

A will can be overturned if the challenger proves that at the time the will was made, the testator was subjected to such strong influence by another that the testator made a disposition of estate property that he or she otherwise would not have done. Coercion and duress are examples of undue influence.

Fraud

To invalidate a will on grounds of fraud, the challenger generally must show that the testator relied on a fraudulent misrepresentation and was deceived by it when he or she executed the will. Evidence of only the opportunity or motive for fraud, without showing that the fraud had an effect on the testator, is not enough to invalidate the will.

Improper Execution

Each state has procedural requirements for the execution of a will, generally including a number of required witnesses. Many states also require that the will be in writing or that the signatures of the testator or witnesses be notarized. A will that does not conform to statutory requirements may be held to be invalid.

Existence of a Later Will

Generally, a validly executed later will is presumed to revoke any prior wills.

 

You should consult an experienced probate attorney if:

• You are the executor of a will that is the subject of a will contest;
• You are the beneficiary of a will that is the subject of a will contest; or
• You want to challenge a will that you believe is invalid.

An estate is the total amount of property owned by a person (the “decedent”) at his or her death. In most states, including, Georgia the probate court oversees the administration of a decedent’s estate. Estate administration is the process of probating the estate of a decedent, which includes inventorying the property, paying and collecting debts, filing estate taxes, and distributing the remaining assets to beneficiaries.

If a decedent leaves a valid will, the will generally names an executor to handle the administration of the estate. The estate assets are distributed by the executor in accordance with the provisions of the will and under the supervision of the probate court.

If a decedent does not leave a will, or if the will is found to be invalid for any reason, the decedent is said to have died “intestate.” The state’s inheritance laws determine how the estate assets are distributed, and the probate court appoints an administrator to administer the estate.

Some types of assets do not have to go through the probate process, including life insurance, tax-deferred retirement plans such as IRAs and 401(k)s, and property owned jointly with a right of survivorship. These non-probate assets are usually directly payable to a named beneficiary or co-owner. Additionally, property held in a revocable living trust does not have to go through probate.

For large and complicated estates, probate can be time-consuming and costly. Most states, including Georgia, provide a streamlined and less expensive process for smaller estates. No matter what the size of the estate, however, dealing with the probate process and preserving estate assets requires an understanding of probate and tax laws. If you are involved in any way with administering an estate, you should contact an attorney with experience in probate and estate administration for guidance.

Probate is the judicial procedure by which a court oversees the disposition of a person’s property after his or her death. If there is a will, the provisions of the will determine how the estate is distributed. If there is no will, or if the will proves to be invalid, the estate will still go through probate, and the estate assets will be distributed in accordance with state intestacy laws.Probate laws and procedures vary from state to state. In some states like Georgia, probate is relatively straightforward, while in other states like Florida and New York, the process is cumbersome, requiring attention to many technicalities and details. Probating an estate generally includes:

• Petitioning the court to probate the will;
• Sending notice of the probate to named beneficiaries, other interested parties, and creditors of the decedent;
• Collecting, inventorying, and if necessary, appraising the assets of the estate;
• Collecting any payments, debts, and income due to the estate;
• Paying any debts owed by the estate;
• Filing federal, state, and local income taxes for the estate; and
• Distributing the remaining estate assets to beneficiaries in accordance with the terms of the will, or in accordance with state intestacy laws if there is no will or if the will is determined to be invalid.

When an estate is probated, it becomes a matter of public record, meaning that anyone can find out the size and contents of the estate and names of the estate beneficiaries.

Time and Expense of Probate

Probate may be a time-consuming process. While it may take only one or two months to probate a simple estate, the process may continue for a couple of years, depending on the size of the estate and the complexity of collecting, valuing, and distributing estate assets. Any will contests or other challenges over the estate will naturally lengthen the duration of the probate process. A lengthy probate process can also be costly, although normally the expenses of probating an estate, including legal fees, are paid out of the estate assets.

Small Estates

Georgia and many other states have a simplified process for small estates that fall within certain guidelines. The simplified process will generally be less expensive and of a shorter duration than the normal probate process.

Intestacy

When a person dies without a will, or if the probate court determines that the will is invalid, the person is said to have died “intestate.” In that case, the state’s intestacy laws will determine who is to inherit the estate. The intestacy statutes establish a default inheritance scheme which generally provides that estate property goes the decedent’s spouse and children and then to parents and other close family members. If the decedent leaves a valid will, however, the provisions in the will control the distribution of estate assets, and the state intestacy laws are not applicable.

Do You Need to Consult an Experienced Probate Attorney?

While probating a small and uncomplicated estate may not be difficult, it is best to seek the advice of an experienced probate attorney. If you have been named as the executor of an estate, an attorney can guide you through your state’s probate process; explain all of the duties of an executor; assist with filling out court forms, sending out required notices of probate and meeting court deadlines; and suggest ways to avoid or mitigate potential estate claims from other parties. You should consult an attorney promptly if any legal challenges are raised regarding a will under which you serve as executor.

An executor is the person named by the creator of the will (the testator) to carry out the provisions of the will. Any person over the age of eighteen and not a convicted felon may be named as an executor. Family members and close friends are often named as executors.

The executor must be capable of performing all the duties required of him or her under the will and in accordance with the state’s probate process. The executor owes fiduciary duties to anyone who has an interest in the estate, and the executor must act in the best interests of the estate. For example, if an executor mismanages the estate assets, he or she can be held personally liable and may have to repay the estate for any losses. If a person cannot serve or refuses to serve as executor for any reason, the probate court generally will appoint another person to administer the estate.

The executor has many responsibilities, including:

• Locating documents left by the testator, such as will, trusts, and deeds;
• Initiating the probate of the will;
• Notifying Social Security, pension providers, insurers, financial institutions, and other entities of the death of the testator;
• Collecting, inventorying, and if necessary, appraising the estate assets;
• Collecting debts owed to the estate;
• Paying claims against the estate;
• Distributing the remaining assets in accordance with the terms of the will; and
• Closing the estate.

Initiating Probate

If you are named as an executor of an estate, you should consult an experienced probate attorney to discuss the responsibilities you are expected to fulfill. An attorney will represent the estate during probate, explain the probate process, and delineate each of your duties. An attorney can obtain the required forms, such as a death certificate and original copy of the will. These forms are needed to probate the will and to notify Social Security and financial institutions of the decedent’s death. An attorney also can send notices of probate to interested parties, as required under the state’s probate code.

Inventorying Assets

An executor is responsible for marshalling all the assets of the estate, including the real and personal property of the decedent, for distribution according to the terms of the will. An executor must locate deeds to real property, gather assets in the decedent’s bank and investment accounts, and inventory the decedent’s personal property, including automobiles, furniture, and household items. If the decedent owned any personal property of value, such as jewelry or collectibles, the executor may have to arrange for that property to be appraised.

An executor also is responsible for preserving and protecting estate assets prior to the eventual distribution of those assets to beneficiaries. Preservation of estate assets can be accomplished through reducing estate taxes when possible and taking advantage of appropriate asset valuation techniques. An experienced attorney can assist the executor in implementing effective asset preservation and tax strategies.

Collecting Debts

The executor is responsible for identifying and collecting any debts owed to the estate. For example, an executor should check with the decedent’ employer to determine if any unpaid salary or benefits are owed. Any expenses of collecting debts owed to the estate, such as the costs of hiring a collection agency, are generally paid out of estate assets.

Paying Claims

The executor must pay all valid claims against the estate. Such payments would include taxes and creditor claims. An experienced probate attorney can assist an executor in filing an estate tax return.

Distributing Assets

Generally, the costs of probating the estate, including attorney’s fees, are paid by the estate out of estate assets before those assets are distributed to the named beneficiaries. After all debts are collected and claims are paid, the executor is responsible for distributing the remaining estate assets according to the terms of the decedent’s will.

Closing the Estate

When all of the estate assets have been distributed, the executor can close the estate. This generally involves giving the probate court evidence that all required notices of probate have been sent, all debts owed to the estate have been collected, all claims against the estate have been paid, and all remaining estate assets have been distributed in accordance with the provisions of the will.

When the probate court is satisfied that the estate is closed, it will release the executor from any further responsibilities on behalf of the estate.

When a person dies, he or she generally leaves both probate and non-probate assets. Assets that are distributed outside of the probate process are non-probate assets. Since the probate process is not involved, these assets generally can be distributed more quickly to the appropriate beneficiaries. Another advantage of non-probate assets is that since they escape probate, the assets do not become a matter of public record and thus privacy is maintained for the estate and for beneficiaries.

Assets are considered non-probate when, by contract, the beneficiary is already named. The most common examples of non-probate assets are life insurance proceeds and tax-deferred retirement plans, such as IRAs and 401(k) plans.

Life Insurance Proceeds

A life insurance policy is a contract with an insurer that specifically identifies who will be paid after the decedent’s death. Since payment of the proceeds to the named beneficiary is part of the contract, there is no reason for the life insurance to go through the probate process.

Tax-Deferred Retirement Plans

These plans generally require the participant to name a beneficiary who will receive the proceeds of the plan in the event of the participant’s death. Since the beneficiary is determined by contract in advance, there is no need for the plan to go through the probate process.

Revocable Living Trusts

A revocable living trust is a legal entity established to hold title to property. When the property owner gives property to the trust, title to the property passes to the trustee of the trust. The document establishing the trust designates to whom the trust property will be distributed at the donor’s death. Since the trust is revocable, the donor has access to the property during his or her lifetime and can, if he or she chooses, take back title to the property. At the donor’s death, the property in the trust passes outside of probate because title is not in the name of the donor.

Other Non-Probate Assets

If an owner of property contractually names a beneficiary who will succeed to ownership in the event of his death, then the property falls outside the probate process and the asset will go directly to that named beneficiary. Methods of establishing non-probate property include:

• Joint Tenancy with Right of Survivorship – When two or more people own an asset jointly, it is often held with a right of survivorship. If one of the owners dies, the other owner(s) then automatically acquires the decedent’s ownership interest in the property. It is common for married couples to hold real estate or bank accounts in joint tenancy with right of survivorship.
• Payment on Death Bank Account – A beneficiary is named when an account is opened. The beneficiary has no ownership interest in the account while the account owner is alive, but at the owner’s death full ownership of the balance in the account automatically passes to the named beneficiary.
• Transfer on Death Securities – Stock, bonds, and brokerage accounts titled in this manner work the same way as POD bank accounts. The account owner names a beneficiary, the beneficiary has no ownership interest in the securities while the owner is alive, and at the owner’s death full ownership in the securities passes to the named beneficiary without probate.

Each of the foregoing strategies presents some attendant risks. For example, a person who opens a bank account jointly with a right of survivorship gives up exclusive control of the funds in the account. The other joint owner may take the funds or a creditor of the other owner may reach the funds.

If you are interested in strategies to avoid probate, please consult with an experienced attorney who can offer comprehensive estate planning advice.