WILLS & PROBATE

A will is a legal document that directs how certain property that you own at the time of your death (called your probate estate) is distributed after your death. A will must be properly executed to be valid. Your will takes effect only upon your death.

A living will is not a will. It is a document authorized under the laws of many states that provides a person's directions on the withholding of life-sustaining medical procedures in the event of a terminal condition or a state of permanent unconsciousness. In Georgia, the document used for this purpose is called an advance directive for health care.

Do you know what property is distributed under a will? Your will controls the distribution of your probate estate. Your probate estate consists of all property owned by you at the time of your death that is not distributed at the time of your death under the terms of a contract or by operation of law. Probate property includes your tangible possessions like clothing, jewelry, household furniture and furnishings, cars registered in your name, real estate titled in your name (or in your name and the name of some other person as tenants in common), bank accounts registered in your name with no pay-on-death designation, and stocks and bonds held in a account in your name with no transfer-on-death designation. Non-probate property-property that is not distributed under your will-includes life insurance with a death beneficiary designation, pension and retirement accounts (like IRAs and 401(k)s) with a death beneficiary designation, property owned by you and some other person as joint tenants with right of survivorship, and bank and brokerage accounts with pay-on-death or transfer-on-death designations. In most cases, a valid will cannot control who receives your non-probate property.

There is a federal tax on the transfer of estates of deceased citizens and residents of the United States. Beginning in 2009, the tax generally applies only to an estate with a value in excess of $3.5 million, but the estate tax law is always changing. If you own or expect to own in the future property (including the death benefits of insurance on your life) with a total value of $3.5 million or more, you should consult with a practicing attorney with experience in estate planning. A will is an important part of a properly structured estate plan to reduce the federal estate taxes that may be owed by your estate.

Probate is the court-supervised process of administering a person's probate estate. The process includes validating the will (or making the determination that there is no valid will), appointing the person who will gather and manage the assets of the estate, paying claims against and expenses of the estate and distributing the assets of the estate to the beneficiaries.

The loss of a loved one is difficult for all parties. Probate is the legal process by which a decedent's estate is valued, beneficiaries are determined, a personal representative in charge of estate distribution is declared, and the estate is legally transferred to the determined beneficiaries.

Georgia has a modern probate code and probate judges who have no interest in prolonging the probate process or closely supervising the administration of estates when it is not necessary. So probate in Georgia is generally not burdensome or expensive. The court costs are often limited to the initial filing and publication fees and are usually less than $500. (Court costs do not include compensation to the executor or fees charged by attorneys or accountants for services provided to the estate.) So despite what you may read in advertisements warning of the burdens of probate, most Georgia residents are not well served by techniques that are designed to avoid probate, such as revocable living trusts. If you own real property in another state, it may be subject to probate in that state at your death, and you may want to avoid probate in that state by using a revocable living trust or some other technique.