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What Steps Should I Take to Avoid Probate in Georgia?

Posted by Joel Beck | Sep 29, 2023 | 2 Comments

When it comes to safeguarding your assets and ensuring a smooth transition for your beneficiaries, avoiding probate can be a wise strategy. In Georgia, there are several steps you can take to bypass the probate process and maintain more control over the distribution of your assets after you pass away.

It is indeed possible to avoid the probate process entirely with meticulous planning and implementing strategic measures in place, including using tools that can ensure your assets transfer directly to the intended recipients without going through probate. The goal here is to have no assets in your name alone at the time of your death, as such assets are the ones that are subjected to probate. Taking this route not only secures a straightforward asset transition but can potentially save your beneficiaries time and money, alleviating them from the bureaucratic hurdles and costs that probate often entails. Keep in mind that the steps to avoiding probate should be tailored to your individual circumstances, assets, and wishes. A one size fits all approach rarely actually fits anyone, in our experience.

Establishing Joint Ownership of Assets

Joint ownership not only eases the transfer of assets but it also promotes harmony among beneficiaries by reducing potential conflicts that can arise during the probate process. By understanding and utilizing joint ownership correctly, you can ensure a seamless and peaceful transition of your assets to the next generation.

Sharing the ownership of your assets is a direct way to avoid probate. In Georgia, this can be achieved through joint tenancy with right of survivorship where the surviving owner automatically becomes the sole owner of the asset, bypassing the probate process entirely. It simplifies the process, giving peace of mind to all involved parties. This kind of arrangement fosters financial unity and collaboration, allowing couples or business partners to pool their resources and work together towards common goals. However, it's important to understand that joint ownership also means shared responsibility for any debts or liabilities attached to the asset. It's a powerful tool in estate planning, but it requires trust and clear communication between all parties involved. And, it is often not recommended apart from married couples, as adding another person as a joint owner exposes the asset to the creditor claims and obligations of the new joint owner, in addition to the risk of loss if the newly added joint owner uses the assets for his or her own purposes, and the asset is no longer available for your own use.

Community Property

Although not applicable in Georgia, it's important to be aware of community property laws if you have assets in other states. Community property is a form of joint ownership for married couples, where assets acquired during the marriage are considered jointly owned. Understanding this can help in estate planning if you hold properties in different states.

Beneficiary Designations and Payable-on-Death Accounts

In Georgia, you have the option to set up payable-on-death (POD) accounts, sometimes also called transfer-on-death (TOD) accounts. This implies that upon your death, the assets in the account will automatically transfer to the designated beneficiary or beneficiaries, avoiding the probate process. It's a straightforward procedure that generally requires filling out a simple form provided by your bank or investment firm. Retirement accounts and insurance policies allow you to name beneficiaries. By clearly designating beneficiaries, the assets or payouts from these accounts and policies can bypass the probate process, facilitating a faster and smoother transfer to your loved ones.

POD and TOD beneficiary designations are great ways to leave assets to others who can manage receiving those assets and are of legal age to do so. But, if you seek to control how those assets are used or when they are distributed, for example in the case of a minor child or a young adult, leaving those assets in a trust of some type may be the best option to accomplish your goals.

Creating a Revocable Living Trust

Creating a revocable living trust (RLT) can be a central piece in your strategy to avoid probate. In this legal entity, you can place assets that will then be managed by a trustee for the benefit of your beneficiaries. Since the assets are owned by the trust, they don't undergo probate, offering a seamless transition upon your passing. Setting up a trust involves drafting a trust agreement, naming a trustee, and transferring your assets into the trust. It is a flexible tool allowing you to maintain control over your assets during your lifetime while facilitating an easier transition of assets upon death. By working with an experienced attorney to establish a trust, you can get a plan that serves your needs perfectly.

RLTs are the typical way that real estate avoids probate when the property is not held by joint owners with right of survivorship. While some states have laws in place allowing transfer on death deeds (TOD deeds are also sometimes called a beneficiary deeds), Georgia does not have such deed type at this time. So, if you own a home and deisre to pass assets to your children or other family members and avoid the probate process to do so, a RLT plan may be ideal for your situation. 

Gifting Assets Before You Pass

One simple way to avoid probate is by gifting assets to your loved ones while you are still alive. This reduces the value of your estate, hence fewer assets will go through the probate process. However, it is essential to be aware of potential tax implications and to strategize appropriately to safeguard the financial interests of both you and the recipients, as gift taxes and other taxes may come into play. Keeping meticulous records of the assets you gift is vital. This includes documenting the value of each asset at the time of the gift. Proper record-keeping ensures clarity and can help in avoiding potential disputes or confusion in the future.

Getting Expert Assistance for Probate Avoidance in Georgia

Navigating the avenues to avoid probate can sometimes be complex, but with the right guidance, it becomes substantially easier and more efficient. Contact Peach State Wills & Trusts at 678-344-5342 to learn how to plan for probate avoidance in Georgia today.

If you have any questions about estate planning in Georgia, you can download our free guide here, no strings attached.

About the Author

Joel Beck

Joel Beck founded The Beck Law Firm, LLC in 2007. His firm focused on business law and estate planning needs of clients, two areas that he was drawn to based upon personal and business experiences in his life, including a ten-year career at NASD (now known as FINRA).


Rick Fludd Reply

Posted Mar 12, 2024 at 01:30:53

Just read your article and was curious to know the date of it’s writing and how/or does House Bill 1650 Transfer on death deed apply.

Joel Beck Reply

Posted Mar 12, 2024 at 05:34:48

Hi Rick.

I suppose you are speaking of House Bill 1650 in the GA house of representatives that was to provide for transfer on death deeds for real estate in GA. That bill was introduced as part of the 2021-2022 regular session and never got a vote. It died at the end of that 2021-2022 legislative term.

However, there is a bill in session this term (the 2023-2024 legislative term) that is either the same bill or substantially similar, seeking to provide for transfer on death deeds. That is HB 1247. As of 3/11/24, it has passed the house and been referred to the senate. It appears it is presently in review in the senate judiciary committee.

I have no idea what will happen to that bill and whether it will pass the senate, and if so, whether the governor will sign it or veto it. We’ll have to wait and see.

For now, since the bill has not passed into law, its proposed provisions for transfer on death deeds are NOT effective.

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