If you’ve ever seen those advertisements from companies that offer to provide you with an advance on your expected inheritance in exchange for a fee, you may have wondered why anyone would ever bother to respond. The reason there’s a market for those kinds of services can be explained in one word: probate. The probate process can take anywhere from six months to more than a year, and many heirs simply cannot wait that long to access their inheritance. That’s especially true where the deceased’s dependents are concerned. If you’re worried that your death might cause your family added grief due to an inheritance delay, then it’s important to know how you can ensure that your estate avoids Atlanta probate court altogether.
There are three main ways to avoid probate in Georgia, as well as an affidavit process that can be used to settle small estates. Depending upon your circumstances and the type of assets that you own, any one of these solutions – or some combination of the three main avoidance techniques – may be right for you. Before deciding upon any course of action, however, it is wise to consult with a local probate and estate planning attorney to ensure that the strategy you choose will be sufficient to meet your needs.
Joint Ownership of Property
Jointly owned property can, in certain circumstances, provide for the asset to transfer to the surviving owner when one of them dies. While this is not true in every case, there are certain types of joint ownership that always work this way. For example, joint tenancy – which is sometimes referred to as joint tenants with right of survivorship – can provide this important protection. In Georgia, this type of ownership can be used by married couples and others to ensure that there is an automatic transfer of ownership when one person dies.
To be effective, the joint tenancy must be established in accordance with state requirements to ensure that these protections attach to the tenancy. There have been instances in which co-owners assumed to their detriment that their ownership structure provided for this right of survivorship – only to find out later that the asset still needed to go through the probate process due to some technical error. To ensure that your jointly-owned property enjoys the protection you need, be sure to review the tenancy structure with an experienced attorney.
It is also critical to recognize that the state of Georgia does not validate certain other joint ownership strategies, such as tenancy in common, transfer-on-death provisions for deeds, or the tenancy by the entirety option that is often used by married couples in other states. Again, be certain that your joint ownership strategy complies with Georgia law.
Payable-on-Death or Beneficiary Designations
If you have savings accounts, checking accounts, or certain other financial accounts, you may have the option of using what is known as a payable-on-death designation to list a beneficiary who will receive the account if you die. This strategy enables you to ensure that those accounts avoid probate, and operate in much the same way as a life insurance beneficiary designation. For example, if you list an heir as a beneficiary on your savings account, then that heir won’t have to go through probate to receive those account assets when you die. Instead, he or she simply deals with the financial institution to obtain the money.
This option has tremendous benefits, and has no impact on what you do with your money between now and the day of your death. In fact, you can assign a beneficiary and then still spend every red cent in your account if you wish. Until you die, that beneficiary has no claim on the assets, cannot access them in any way, and has no legal right to expect that you’ll have any assets in the account when you pass away.
The third option is typically the first one people think of when they consider how best to avoid probate: trusts. Both revocable and irrevocable trusts can be used to protect your assets from probate, since both provide a structured and legal way to ensure that your estate assets are properly distributed to your heirs. Because trust funding requires you to transfer ownership of assets from your personal estate to the trust, those assets are no longer attached to the estate if any part of its still needs to go through probate.
Of course, the trust provides a host of other benefits too – including the ability to care for heirs with special needs, provide for your pet, minimize estate taxes and other tax liability, and plan for things like Medicaid eligibility. When you create your trust, be sure to discuss all your specific needs with your estate planning attorney to ensure that you have the right tools to achieve your goals.
The Small Estate Affidavit
This last option is useful when the deceased’s estate consists of no more than $10,000 in a bank account. This small estate can be claimed by a surviving spouse, the deceased’s children if there is no spouse, or the decedent’s parents if he or she left behind no spouse or children. When there are no other close family members surviving the decedent, his or her siblings can claim the account. The heirs need only to apply with the financial institution by presenting a properly executed small estate affidavit.
At the Fouts Law Group, LLC, we understand why many of our friends and neighbors in the area are committed to helping their surviving family members avoid the time and costs associated with the Atlanta probate court process. Fortunately, Georgia law allows these probate avoidance strategies to help residents just like you provide a quicker and more efficient way for assets to be distributed to your heirs when you die. If you’d like to learn more about how probate avoidance strategies can benefit you and the people that you love, contact us online or give us a call at (404) 596-7520 today.
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