If you’re like many people, you might think that having a Last Will and Testament means your loved ones can skip probate when you pass away. A common misconception—especially here in Georgia. This is actually a common misconception we speak with people about in our Strategic Estate Planning consultations at Atlanta Wills + Trusts Law Group.
Here is the short answer to the question posed: No, a Will does not avoid probate in Georgia. In fact, it almost guarantees it.
Now here is the longer answer:
What Does a Will Actually Do?
A Last Will and Testament is a legal document that outlines your wishes about who should receive your assets when you pass away and who should manage the process of estate administration (the process of getting those assets out of your name and distributed to the rightful owner). This person is typically referred to as an Executor.
A Will must be validated by the probate court before your wishes can be carried out. Basically, no one should access your money, use your things, give them away, pay your bills you owed while alive, etc. until authority has been given to do so by a probate court.
So What Is Probate?
Probate is the court-supervised legal process of estate administration. Here are the basic steps of probate:
- Validating the Will
- Appointing the executor
- Identifying and valuing assets
- Paying debts and taxes owed by the person who passed out of those assets
- Distributing what’s left to the beneficiaries
Even if someone has a perfectly written Will, it still must go through this process in Georgia. Meaning, no matter how clear, or how simple, or how much everyone agrees, the Last Will & Testament must go through this process in Georgia.
And probate typically takes between six months (very, very lucky) to several years (if there are disputes or issues with assets). There are very few ways, if any, to speed up the probate process.
Why Can’t a Will Avoid Probate?
A Will is like a letter of instructions. But until a probate judge approves it, no one can legally act on those instructions. Assets don’t automatically transfer just because they’re named in the Will.
Here’s an example:
If your grandmother left you her house in her Will, the property can’t be sold or transferred until the Will is probated and the executor has legal authority to act. Otherwise, the title can’t legally change hands. In the past, families have just passed on a property to the next person and over a generation or two, the paperwork can become complicated. So much so, that to straighten out the paperwork could be incredibly costly and sometimes families have lost the home due this cost. There is a term for this called heirs property.
Are There Ways to Avoid Probate?
Yes. If your goal is to avoid probate, a Will alone won’t do it. You’ll need to use other planning tools such as:
- Revocable Living Trusts – Assets in a trust avoid probate entirely so long as the assets are properly put into the trust (funded) and so long as the trust is written correctly.
- Beneficiary Designations – Life insurance, retirement accounts, and some bank accounts let you name beneficiaries. Make sure to name secondary or contingent beneficiaries, also.
- Joint Ownership – Assets held jointly with rights of survivorship usually pass outside of probate.
So the bottom line is …
If you’re in Georgia and someone dies with a Will, expect to go through probate. That’s not necessarily a bad thing—but it’s something to plan for. A Will makes the process more straightforward, but it does not avoid it.
If avoiding probate is important to you or your family, talk to us at Atlanta Wills & Trusts Law Group about strategies that go beyond a Will.