Probate is the court process of taking what a person owned at their death and transferring it to the person or entity entitled to receive it after the person died. How long does probate take? Who the “entitled person or entity” is to receive money after I die? Who is in charge of the probate process? What goes through probate? Well those are things we’ll touch on in this article.
First, let’s set up a situation. Let’s say I die. At my death, I own a home by myself, a checking account, a savings account, a retirement account and a car. There is also a life insurance policy through my work.
The very first thing to realize is that I AM DEAD. I can no longer own anything after I die. So imagine there is this instantaneous cloud that forms in front of me after I pass away. That cloud is called the “Estate of Amy.” That Estate now “owns” everything that I owned at my death. So what is it that I owned that my Estate now owns: my home, my checking account, my savings account, and my car.
What about the life insurance and retirement account? Well, the estate doesn’t own those two things because while I was alive, I named a beneficiary. So I decided while I was alive to fill out a form naming my husband as 100% beneficiary, if he has died, then my mom as beneficiary of 50% of value and my dad as beneficiary of 50% of value. My Estate doesn’t own these, now, think of it like the beneficiaries now own 50% each. There are steps that need to happen to transfer those two things: the retirement and the life insurance. But those two things DO NOT go through probate and those two things DO NOT get effected by what I say in my Will. No matter what I write in my Will, nothing changes what I put down as the beneficiary of those accounts. So accounts and policies with beneficiaries avoid probate.
But what doesn’t avoid probate is my home, my checking account, my savings account and my car. Remember, my Estate now owns these as these do not have beneficiary designations. So what happens next?
It depends on whether I have a Will or not.
If I have a Will, then the person I have asked to be in charge of the process of probate, my Executor, takes my Will to the probate court of the county in which I live in at my death. Let’s say that is Fulton County. They go to Fulton County Probate Court and present my Will, along with a petition to probate, to the Court and they ask the court to put them in charge of the probate process. Usually there isn’t any questioning of who is in charge. Its clearly stated in the Will who you or I want and unless there is a good reason not to put them in charge, the Court will give them the job of Executor.
If I do not have a Will, then someone, anyone who wants to, files a petition to for letters to administer, and asks to be in charge of the probate process. They also do this in the probate court in the county in which I live. The difference is it doesn’t matter who I, or you, wanted. The Court decides and they have nothing from me or you to go on in terms of making the decision. I have completely chosen not to share my opinion with the court.
I tell people all the time, if you have an opinion on who you want to be in charge of the process, get a Will.
Once the probate process starts, whether through a Will and Petition to Probate or without a Will and a Petition for Letters of Administration, someone is now in charge of my Estate. They represent my Estate. Remember the Estate now owns what I owned when I died: my home, my checking account, my savings account, and my car. The Executor (which is what we’ll call this person from this point forward for ease and word space) is the title of this representative of my Estate.
My Executor then has to gather up these things and take stock of them in terms of the amounts in the accounts, value of home, value of car, this is referred to as “marshalling my assets.” That is really the first of their three main tasks. Take charge of what I owned at my death and keep it safe during the process of probate.
My Executor then needs to determine who I owed money to during my lifetime, my creditors at death, notify them officially and publicly that I died and to step up and say something now or forever hold their peace, then to satisfy those creditors that may be actually entitled to monies from my Estate. This is important. My family is NOT responsible for my personal debts. My Estate is responsible. No matter what the creditors say and try to do to get someone OTHER THAN MY ESTATE to pay them. Because creditors do try to do this.
Once my Executor’s responsibilities to the creditors of my Estate are taken care of, the job of the Executor is to then transfer (or give) everything left that my Estate owns to the people or entities entitled to receive.
If I have a Will. My Will tells my Executor who I wanted to get everything left in my Estate (my residual Estate). So if I have a Will and it says I give 100% of my Estate to my husband, if he passes away before me, then I give 50% of my estate to my daughter and 50% of my estate to my son, they have the responsibility to do this.
If I do not have Will, well the State of Georgia has decided who gets the Estate. Yes. The State of Georgia has a Will for you. It may surprise you who the State of Georgia thinks your Estate should go to when you die! Well, this is an entire blog post waiting to happen. But I will say this, my husband gets 33.3%, my daughter gets 33.3% and my son gets 33.3% and there is NOTHING that my husband nor my Executor can do about it. Period.
If you have an opinion on who you want to receive anything at all when you die, whether its $50.00 or $5,000.00 or more, get a Will.
After my Executor divvies up the Estate property, they let the probate court know that its all done and to close out the court process. So they do.
This process takes months to happen, realistically, six to nine months is a perfect scenario nowadays. Depending on the county you live in at your death and the court system in which your probate is filed, well that impacts the length of time your estate will be in probate.
Are you interested in making sure your opinion of who is in charge or who gets your estate is heard in probate? Give us a call. That’s what we do all day long.
Are you interested in avoiding probate altogether? Give us a call. We do that, also, all day long.