Last week we all agreed that death is not a fun or easy topic to think about much less take the time to plan for in advance. We also discussed what probate is and shared some advice on how to go through the probate steps. What we didn’t have time to discuss is what situations make the process more complex. So when is Probate complicated? We know… one more thing to think about, but as the saying goes, “better to be safe than sorry”.
Real property in different states
Probate gets complicated when you own real estate in different states. Although you need to probate the Will in the state the person resided in at the time of death, you will need to do an ancillary probate in each state where the deceased owned property to transfer title to the beneficiaries and/or sell the property. Ancillary probate means having that state recognize the executor’s authority to act for the deceased in that state. So, that little farm your grandma owned in Tennessee may add a kink to an easy probate if it was not considered during her estate planning. Ancillary probate involves more money, time and usually an additional lawyer.
How is property titled?
Another consideration is how jointly held property is titled. If the property is titled as “tenants in common” then each party owns 50% of the whole and you need to probate to transfer the deceased 1/2. If it is titled “joint tenants with right of survivorship” then you only need to record the death certificate with an Affidavit and the joint tenant becomes the owner without probate. This is a good reminder of how important it can be to think about these things anytime you jointly buy property.
Locating the heirs at law
Another situation that may complicate probate is when the “heirs at law” (a person or persons who inherit, or has a right of inheritance in, the real property of one who has died without leaving a valid Will) are difficult to find, do not get along or are disinherited. Georgia Law requires all heirs at law to be notified of the probate of a Will in case they want to contest it. If the heirs at law are unknown or their whereabouts are unknown, it is a problem and it makes probating more costly and difficult. This is a perfect example of the necessity of creating a proper Will.
Notification can be cumbersome. You need to search for the heirs, file an affidavit of diligent search and then publish in the local newspaper looking for them. The heirs at law are also asked to sign and have notarized an Acknowledgement of the Probate. If they are not inheriting anything, they are not likely to do this which results in you needing to have them served. This can be incredibly time consuming and expensive. It is certainly not something you want to do after a loved one dies.
Thank you for sticking with us as we discussed many of the reasons for taking the time to create your estate plan. We are sure you want your loved ones to be able to deal with your estate as smoothly as possible. The experts at Hurley Elder Care Law, 404-843-0121, are here to assist you with your estate plan and are also here to help your family work through the process after your death.
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