Sailing Smoothly Through Probate By Chris Miller, Esq.

 

When a loved one passes away, family members coping with grief are often frustrated by the process of transferring ownership of cash and property to the rightful beneficiaries. With a little advance planning and some careful thought, you can minimize the headache of “Probate.”

An easy first gift at your death to your family is leaving behind a signed Will. A Will names an Executor who controls the handling of your estate. It also gives that Executor instructions on distributing assets to your desired beneficiaries.

A second step in making probate easier is signing a self-proving affidavit at the same time that you sign a Will. The self-proving affidavit helps the probate court know that the Will was validly signed and witnessed, and it lets the Executor file the Will for probate without spending time looking for the witnesses to the Will.

The third step is making sure that your Will contains a waiver of certain Executor responsibilities like preparing an inventory and filing annual returns detailing the debts and expenses paid by the Executor. Many software programs may generate a valid Will, but this waiver is often left out from those forms because many states do not permit waivers the way the Georgia Probate Code does.  By including a waiver in your Will, you can save your Executor time and money, and can also keep the contents of your estate private.

After your death, the Executor determines whether your probate is needed or if your assets all transfer to beneficiaries outside of probate.   If the Executor needs to open a probate estate, then the Executor files the original Will at the probate court in the county where you lived.  Together with that Will, the Executor needs to show the Court either a self-proving affidavit or a notarized statement from a witness. The Executor should also obtain a death certificate and solicit consents from the decedent’s spouse and children.  If a person dies without a spouse or living children, then other family members must be given a copy of the Will and the right to object.  Knowing how to contact those people and getting good advice can make the trip through probate court a smooth and painless experience.