What will happen to your assets and belongings when you pass away? Even if you've made a will, your estate must go through probate in Georgia. Dealing with probate court can turn into a messy and complicated ordeal for loved ones you've left behind, so it makes sense you'd want to spare your family from this headache however you can.
Here are a few strategies to help you avoid probate in Georgia.
Joint Property Ownership
If you own a home, car, or other property with someone else, Georgia law calls that “joint tenancy.” In Georgia, this type of property transfers to the other owner when you pass away.
But you must establish ownership under Joint Tenancy with Rights of Survivorship. By default, multiple tenants (owners) hold property as Tenants in Common. In this case, when one owner dies, the property remains in their estate. That means it will still need to go through the probate legal process.
But, it's not a wise idea to add a child or other person to a real property deed as a joint tenant as a way to avoid probate. That can result in your property being at risk for their creditor claims, could subject you to certain gift tax issues, and will also result in negative tax treatment for the child or other person. There are much better ways of handling passing property to loved ones after your death.
Revocable Living Trusts
You can avoid probate in Georgia by transferring your assets to a revocable living trust. Property in the trust avoids probate, because it is not in your estate when you die. A successor trustee named in the trust can immediately access and manage assets in the trust in the case of your incapacity or death, and, upon your death, the trust assets can be distributed to your beneficiaries outside of the probate process. Importantly, you'll still have access to your assets and retain control over them while you are alive.
In a living trust, you can store nearly any asset. This includes bank accounts, real estate, vehicles, insurance policies, and many others.
You can set up a transfer-on-death or pay-on-death designation to prevent your bank accounts and other financial accounts from going through probate. When you pass away, your money will go directly to the person you've named without the hassle of court intervention. If, however, you want those assets managed by a trustee of your choosing, and distributed over time or in accordance with a particular plan, using a trust, such as a revocable living trust, can be a good way to accomplish that goal.
If you have a life insurance policy or retirement account, you can designate beneficiaries for them as well. Like your bank account, ownership of insurance policies and retirement accounts goes directly to your named beneficiary. A revocable living trust can be named as a beneficiary on these assets as well, if that is appropriate to help you accomplish your goals.
If you intend to leave loved ones money or property in your will, it may be smarter to gift them these assets before you've passed away. Doing so means they won't need to deal with probate to access your estate.
However, giving away assets can have implications if you plan to apply for long-term care Medicaid. Medicaid pays for nursing home care if you can't cover the cost yourself. But it's important to note that Medicaid has a five-year look-back period to ensure you didn't sell or give assets away for less than they're worth. If you foresee the need or desire to attempt to obtain and use Medicaid benefits in the future, you should certainly consult an experienced elder law lawyer before implementing any type of gifting strategy.
Peach State Wills & Trusts: Helping You Avoid Probate in Georgia
The probate process can be stressful and time consuming for your loved ones, even if everything goes perfectly. And if you pass away without a will, dealing with probate can become even more of a hassle.
An experienced estate planning lawyer can advise on your options for avoiding probate in Georgia. Contact Peach State Wills & Trusts at (678) 647-7297 to learn more about probate avoidance strategies today.