Estate Planning & Probate in Monroe, GA & Walton County, GA
Compassionate, attentive and detail-oriented assistance with end-of-life planning and resolving issues associated with the death of a loved one in Monroe, GA or Walton County, GA.
Foster, Hanks & Ballard work to help clients develop the right plan for handling their affairs after their death and to help clients wind down the business and financial affairs of a loved one who has passed away. Ideally, good legal advice and sound planning eliminate difficulties and limit conflicts following someone’s death. When the death of a loved one occurs, emotions tend to be raw and nerves frayed. During those times, disputes centering on the deceased family member’s estate start to erupt. This is especially so in cases of multiple marriages, step-children and late-in-life marriages where the children of both are adults and a limited emotional bond to the step-parent or step-siblings. Sometimes the dispute will be between beneficiaries and a corporate fiduciary, such as a bank, or other professional responsible for administering or distributing the estate or trust.
Our firm focuses on representing parties to these disputes, including those who bring the claims and those who defend them. Most lawyers who practice in estates and trusts, one of the law’s most technical and complex areas, prefer to serve as estate planners and advisors. Many do not handle disputed matters at all and feel uncomfortable in the courtroom. Since we focus on litigation and trial practice, we bring a trial lawyer’s perspective and skills to the resolution of these disputes.
Over the years, we have been privileged to represent members of many families in litigation involving estates and trusts of all sizes. Generally, Georgia law requires that executors of wills and trustees of trusts exercise a duty of utmost good faith and loyalty to the beneficiaries of an estate or trust. The consequences of breaching this duty can be severe and can include compensatory damages, the award of attorney’s fees, and punitive damages. Thus, it is important to get solid legal counsel in handling estate issues.
What is Estate Planning?
Effective estate planning is an intentional process of planning for the disposition of your property prior to your death. Estate planning involves determining how your estate, or the things of value in your life, will be distributed among your beneficiaries or heirs (beneficiaries are persons you choose to receive something of value; heirs are the legally defined parties entitled to receive your property if you have not already selected beneficiaries). While often not a pleasant topic to dwell upon, estate planning not only ensures that your assets are given to the people you choose, it also has added benefits such as:
- Minimizing distress or conflict amongst family and friends during the most emotional of times;
- Limiting or controlling tax consequences associated with the passing of assets; and,
- Limiting or even eliminating what property must be distributed through the probate courts, as opposed to being transferred automatically and outside of the estate, which also limits access by the creditor for the payment of debts owed by the deceased
While a will is being probated in the court system, beneficiaries do not have access to their inheritance, which is why many people try to bypass the Probate process through one of the following approaches:
- Investing in Life Insurance
- Creating a Living Trust
- Joint Ownership deeds, accounts and business agreements
- Utilizing accounts and investments that allow the naming of a beneficiary
An experienced Estate lawyer will be able to advise you how best to use these tools to avoid the expensive Probate process.
What is involved in the Probate Process?
The probate process is the court-supervised business of dividing and distributing your estate after your death. Essentially, Probate makes sure that the distribution of your belongings is carried out just as your will explicitly states. A legal representative will work with your will’s executor to carry out your final wishes. In the event that your loved ones are unable to bypass this process, after a Petition to Probate a Will is filed, Probate generally follows the stages listed below:
The probate process begins when the Court recognizes whomever has been named in the will as the executor. Usually, this is a family member, close friend, or lawyer (if you didn’t create a will, the Court will consider this appointed person the administrator to your estate). To make this petition of the court, the eligible party will need to file a formal application that lists the date of the deceased’s passing, names of the estate’s beneficiaries, a list of surviving family members, and other information as it pertains to the estate. Before the initial hearing, formal legal notice will need to be sent to all those who appear on the list of beneficiaries, along with pertinent creditors.
Your loved ones will also be obligated to post a legal notice in the local newspaper to ensure all necessary parties have been notified of the Probate hearing. If the deceased held property in several counties within the same State, one probate proceeding will still cover all the person’s estate. If you lived in a different State from your real-estate properties, your requested executor may have additional requirements, like appointing a local representative for your State of residence.
Once an executor has been named to the estate and the obligatory notices have been sent and posted to alert the necessary individuals, a court hearing will be scheduled to allow concerned parties an opportunity to object to the validity of the will or the appointment of said executor. This initial hearing is usually a formality. However, when an estate is contested it is at this point the objection is made, by the filing of a Caveat. In filing a Caveat, a party is objecting that the document is not actually a will, that the signature of the deceased is forged, that the deceased was not mentally competent, that the will was not executed with the required legal formalities, or that the deceased only signed the will because fraud or undue influence. Once the Court approves the request, court-issued documents, usually referred to as Letters Testamentary, will authorize the executor to act on behalf of your estate.
Bonds are a type of insurance policy that protects estates from losses up to a certain amount. Most wills specifically state that they do not require a bond to be posted, but if your will doesn’t cover that, or if you did not prepare a will before your death, whether or not your executor will need to post a bond is left up to the discretion of the judge.
Proving Validity of the Will:
If you did create a will before the time of your death, it will be the job of your estate’s executor to prove its validity by issuing a statement from one or more witnesses, in one of three forms:
- A self-proving affidavit, which is notarized and signed by witnesses of the will at the time of its creation
- A witness’ court testimony (in many cases, this may take the form of a deposition)
- A witness’ signed, sworn statement
Estate Property Management:
Most Probate cases must remain open for at least four to six months to give creditors the chance to surface; during this time, the executor may use the estate’s assets to open a financial account in its name in order to pay creditors as they come forward. The court may also require an itemized list of the deceased’s property along with the appraisal of assets included in the estate.
Early Distribution of Property to Beneficiaries:
In order to ensure that an estate has enough financial assets to pay off taxes and creditors, inheritances are usually held from the beneficiaries until the Court is positive those assets will be there; in order to distribute those inheritances early, your estate’s executor will need to show the Court that there will still be enough money left in the estate to pay the necessary parties even after certain endowments have been doled out. More than likely, court approval will need to be sought before any property may be given out early. The early distribution of property is a good idea, especially if the assets involved depreciate over time, or if the beneficiary isn’t monetarily solvent, like a college student, for example. It is important that your estate’s executor does not show preferential treatment when distributing property early.
Closing the Estate:
Once all tax returns have been filed, debts have been paid off, and all creditor claims have lapsed, your executor will be able to distribute the estate’s remaining property to the listed beneficiaries. The final step that needs to be carried out by the executor in order to close the estate is to file an account of all the estate’s activities with the Court; this will serve as a roadmap for the distribution of the estate’s assets as well as documenting all payments made to creditors. In the event that the estate accrued income or losses, the accounting will verify those gains and losses. Once the executor files the accounting paperwork, the estate is officially closed, and the executor is released from all obligation.
Because Probate can be such a long and costly process, it is imperative that you sit down with an Estate attorney when you’re in good health to set up the necessary systems that will make it easier for your loved ones to avoid Probate altogether. This will mean your beneficiaries will benefit from their inheritance sooner, and it won’t leave your appointed executor wrapped up in legalese for months and months after your passing.
How do I write a Will?
A will is a legally binding document that clearly states your wishes for the following:
- How your property will be distributed and to whom
- Any conditions imposed upon the distribution of property, such as establishing a trust that controls what purposes and at what age property is made available to any minors who may receive property under your will
- Who will manage your estate, and how
- Who will manage any assets that are left for the benefit of minors
- Who you prefer have custody of your minor children (known as a testamentary guardian
Once you have drafted the will, the next stage is proper execution. This should involve 2 witnesses and a notary. They should be physically present when the person signing the will (the testator if male, testatrix if female) orally states that the will is, in fact, their will, that it accurately reflects their plan for managing and distributing their assets at their death, that they completely understand the contents of the will, that they have developed this plan with their own free will, that they have not been threatened, coerced or intimidated, that they are over 14 years of age and that they are of sound mind and competent to execute the will. The will should then have each page initialed and the last page signed by the testator or testatrix. The witnesses and the notary should not only hear the oral declaration but should observe the initialing and signing of the document. Finally, all that are present should execute a self-proving affidavit which is attached to the will in which everyone swears that they have been present, heard the testator’s declaration, and watched the initialing and signing.
Now your will is finished but this doesn’t mean you can lock it away and forget about it. Wills need to be updated as family circumstances change, there are major changes in assets or your plan for who should get what changes. It’s a good idea to check-in with your will every couple of years to make sure the document still reflects your wishes, and make sure you keep your will somewhere safe and that your loved ones know where to find it in the event of your death or incapacity.
Should you die without a Last Will and Testament, you’ll be considered “intestate”, and the division of your assets will fall to the Court’s responsibility. Once the Court takes control of managing your estate, there is no other option but for your inheritors to endure the long and costly process of Probate, and for the parties listed as “heirs” in the Probate Code to receive your assets in the specified amount.
Do my spouse and I need separate Wills?
Yes. Practically speaking you should always have separate wills, although they may contain an identical plan for distributing assets and for the placement of minor children. If there is a concern that a spouse may remarry after your death, perhaps even have additional children, and you want to ensure that your children receive the eventual benefits of the property you have left to them, a trust can be established to address this issue.
Foster, Hanks & Ballard, LLC provides representation in estate-related litigation and matters such as:
Preparation of Wills
Will Contests and Caveats
Probate of Wills and Administration of Estates
Undue Influence and Lack of Capacity Claims
Breach of Fiduciary Duty Claims in an Estate or Trust
Fraud in an Estate or Trust
Petition for Years Support