Why Probate Isn’t a Great Option for Mothers with Young Children in Georgia
Estate planning is a plan. It is a plan for your money, things and property if you become incapacitated and for when you pass away. For mothers with young children in Georgia, however, relying solely on probate to handle the distribution of your assets may not be the best option.
If you only have a Will, a last will and testament, your estate will go through probate. You cannot avoid probate with a Will.
Probate, the court-supervised process of administering an estate after someone dies, can be time-consuming, expensive, and emotionally draining—especially for families with young children. Here’s why probate might not be the ideal choice for those looking to protect their families.
1. Delays in Accessing Assets
One of the biggest downsides of probate is the potential for significant delays. In Georgia, the probate process typically takes months to complete (maybe years), depending on the complexity of the estate and whether there are any disputes or challenges. For families with young children, this delay can be particularly problematic.
Consider that the surviving spouse or guardian of the children may need immediate access to funds to cover day-to-day expenses such as housing, food, childcare, and education. If these assets are tied up in probate, the surviving parent or guardian might struggle to provide for the children’s basic needs while waiting for the court to distribute the estate.
Even if there isn’t any outside influence creating delays, what about just being at the mercy of a court system. Each step in probate requires court supervision and, sometimes, permission to move forward. You need signed documents to get access, you need to publish X number of times to creditors weeks apart. These are non-negotiable in probate. Any one of these steps can create a delay in access.
2. Costs Associated with Probate
Probate can be expensive, and for families with young children, these costs can reduce the assets intended to support your loved ones. In Georgia, probate expenses may include:
Court Fees: Filing fees and other administrative costs can add up, especially if the estate is complicated.
Attorney fees: Many families hire an attorney to navigate the probate process, which can be time-consuming and require legal expertise. It is NOT REQUIRED in Georgia, as it is in some states. But a lot of peopel do hire an attorney because it is not something they do every day (navigate a legal system) and it could be confusing.
Executor fees: The executor of the estate is typically entitled to compensation, which comes out of the estate’s assets. In a properly drafted plan, you can decide to not compensate an executor.
For families with limited financial resources or young children who will need support for years to come, these expenses can take a significant bite out of the estate, leaving less to provide for the children’s future.
3. Court Supervision and Lack of Privacy
Probate in Georgia is a public process, meaning that the details of your estate, including your assets, debts, and how you chose to distribute your wealth, become part of the public record. For many families, this lack of privacy is undesirable. No matter who you are, you can’t avoid this public record. Even celebrities.
Touched on above, the court’s involvement means that the process is subject to scrutiny and delays, especially if disputes arise over the will, guardianship, or distribution of assets. In families with young children, disputes over the estate could create additional emotional strain and legal complications, which is the last thing your loved ones need during a difficult time.
4. Guardianship Complications
For families with young children, designating a legal guardian is one of the most critical aspects of estate planning. While you can name a guardian for your children in your will, the probate court will still need to confirm this designation. If your will is contested, or if there are disagreements among family members about who should care for the children, this can delay the appointment of a guardian and create uncertainty during an already challenging time.
Without a guardian in place, the children may be placed in temporary care, potentially in the foster system, until the court decides who will take legal custody. This is a scenario most parents would prefer to avoid.
We recommend having a separate pre-need nomination of guardianship document in your plan, which not ever law firm or online estate plan generator even offers.
5. Inflexibility of Probate
Probate is a structured, legal process, which means it offers little flexibility in how assets are managed or distributed. This lack of flexibility can be especially problematic for families with young children who may need more nuanced financial arrangements. For example, if your children are minors, they cannot directly inherit assets. Instead, a court-appointed conservator will manage the assets on their behalf until they reach adulthood, at which point they would typically receive the inheritance in a lump sum.
A conservatorship process is different from probate, as it goes on until your child is 18 years old. So court supervision of your child’s inheritance until they are 18 can be a lot to imagine. Meanwhile, the court will appoint someone of their choosing (yes, someone in your family can step forward and ask to be the person) to be the “conservator”. But the court will supervise that person.
Most parents would prefer to have more control over how and when their children receive their inheritance, potentially staggering distributions over time or placing funds in a trust to be used for education and other specific needs. However, probate doesn’t allow for these kinds of custom arrangements, leaving the estate to be managed according to Georgia law rather than your personal wishes.
6. Living Trust Alternative to Probate
For mothers with young children, avoiding probate altogether can provide a smoother, less stressful, and more flexible way of managing assets after a parent’s death. One effective way to avoid probate is by creating a revocable living trust. A trust allows you to:
Manage your assets during your lifetime.
Designate a successor trustee to manage and distribute assets according to your wishes.
Control how and when your children receive their inheritance.
Outline ages when your children can receive percentages of their inheritance until they reach an age you are 100% comfortable with them having their monies. Most parents choose an age well beyond 18 years old.
A trust avoids the delays, costs, and public scrutiny of probate while giving you more control over your children’s financial future. Other probate-avoidance strategies include designating beneficiaries for life insurance policies, retirement accounts, and bank accounts, as well as using joint ownership with rights of survivorship for property.
For moms with young children in Georgia, probate may not be the most efficient or protective option. Delays, expenses, and lack of control can leave your loved ones vulnerable during a critical time. Instead, creating a comprehensive estate plan that includes a living trust, guardianship designations, and other probate-avoidance tools can provide peace of mind and ensure that your children are cared for and supported according to your wishes. Working with an estate planning attorney can help you develop the best plan for your family’s unique needs, keeping their future secure.