This is one of the most common questions we are asked by clients. Like most questions, the answer is “it depends!”
Probate is the process of proving that a document is the valid last will and testament of a deceased person (or that the person died without a valid last will and testament), and the court-supervised process of administration of the estate of the deceased.
If you have been to one of my seminars, you have heard me say “If you have to die, die domiciled in Georgia!” This is because probate laws are state laws, and Georgia has a very easy and inexpensive probate system. Our probate system is inexpensive because the fees are standard – roughly $200 and not dependent on the value of the assets in the estate. Our probate system is easy because there are standard forms for almost everything, typically the Executor only has to make one trip to the courthouse to take an oath in front of a clerk, objections and claims against the estate must be filed quickly, and because bond, inventories and accountings can be waived.
But remember that because probate laws are state laws if you own real estate in other states, that real estate may be subject to probate laws of that other state.
So when do we advise clients to avoid probate? Typically we advise avoiding probate when the beneficiaries under the Will are not the same as heirs under law. When the executor petitions the court to probate a Will, the heirs under law are notified and given an opportunity to object. Heirs are your closest living relatives under state law; proper objections are that the person making the will lacked mental capacity or was unduly influenced in the making of the Will. When a person names beneficiaries under the Will who are not heirs, heirs may not be cooperative in getting the probate underway—and in some cases, may object. Consider the following examples:
-Bob and Linda have been married for 60 years and do not have children. Their parents and siblings have all died, and their heirs are nieces and nephews they rarely see, including one nephew who is estranged from the family. Their beneficiaries are charity. Bob and Linda may want to avoid notification of the nieces and nephews through probate.
-Bob and Steve have been a couple for 25 years but have not legally married. They have no children and have named each other as beneficiaries of their Wills. Steve’s siblings, who are his heirs, do not support same sex relationships and so Steve does not want them notified through probate.
There may be other reasons to avoid probate in your particular situation, so you should discuss this with your lawyer.