What Assets Have to Go Through Probate in Georgia?

One of the most common questions families have after someone passes away is, “Does everything they owned have to go through probate?”

The answer is no.

In Georgia, whether an asset goes through probate generally depends on how the asset was owned and whether there is another legal mechanism for transferring it after death.

Understanding the difference between probate and nonprobate assets can help you create an estate plan that makes things easier for the people you love.

What Is Probate?

Probate is the legal process used to administer a person’s estate after death.

Through the probate process, an executor or administrator may be given authority to gather estate assets, address debts and expenses, and distribute property to the appropriate beneficiaries or heirs.

If someone has a will, the will generally provides instructions for how probate assets should be distributed. If someone dies without a valid will, Georgia law determines who inherits property that is part of the estate. For what that means for families, see die without a will in Georgia.

But not every asset necessarily becomes part of the probate estate.

1. Assets Owned Solely in Your Name

One of the biggest indicators that an asset may need to go through probate is how it is titled.

If you own property solely in your name and there is no beneficiary designation, survivorship provision, trust, or other method for transferring the asset at your death, probate may be necessary to transfer ownership.

This could include things such as:

• Bank accounts held only in your name
• Investment accounts without a beneficiary designation
• Real estate titled solely in your name
• Vehicles titled solely in your name
• Certain business interests
• Valuable personal property

Simply having a will does not necessarily keep these assets out of probate.

A will tells the court how you want your probate estate handled. It does not, by itself, eliminate the probate process.

2. Real Estate Owned Individually

Real estate is an important part of probate planning.

If a home, land, rental property, or other real estate is titled solely in the deceased person’s name, the estate may need to address that property through the probate process.

However, the way property is titled matters.

For example, property owned with another person with a valid right of survivorship may pass to the surviving owner outside of probate.

This is why reviewing the deed to your property is an important part of estate planning. You should know exactly how your property is titled rather than assuming it will automatically pass to your spouse, children, or another loved one.

3. Personal Property

Personal belongings can also become part of a probate estate.

This may include furniture, jewelry, artwork, collections, electronics, firearms, family heirlooms, and other possessions.

Some of these items may have significant financial value. Others may be valuable primarily because of their sentimental importance.

Unfortunately, sentimental property can sometimes become a major source of disagreement among family members.

Clearly documenting your wishes for meaningful personal property can help reduce confusion later.

4. Business Interests

If you own part or all of a business, your ownership interest may become part of your estate.

What happens next can depend on the type of business, its governing documents, any buy sell agreements, and your estate plan.

Business owners should pay particular attention to this area.

Without proper planning, your family could be left trying to determine what happens to your ownership interest while also dealing with the other responsibilities that follow a death.

A comprehensive estate plan should coordinate with your business succession plan.

What Assets May Avoid Probate?

Some assets can transfer automatically or through another legal arrangement instead of passing through probate.

Common examples may include the following.

Jointly Owned Property With Rights of Survivorship

Certain property owned jointly with rights of survivorship can pass directly to the surviving owner after one owner dies.

The exact language used in the title or deed matters. Simply having two names associated with an asset does not always mean it will automatically pass to the surviving person.

Life Insurance With a Named Beneficiary

Life insurance proceeds generally pass directly to the beneficiary named on the policy rather than through the probate estate, assuming a valid living beneficiary has been designated.

This is one reason beneficiary designations are such an important part of estate planning.

Retirement Accounts With Named Beneficiaries

Retirement accounts may also pass directly to the beneficiaries listed on the account.

This can include certain IRAs, 401(k)s, and other retirement assets.

Your will generally does not control an account that has a valid beneficiary designation, which is why those designations should be reviewed regularly. If a named beneficiary dies first, see beneficiary dies.

Certain Accounts With Beneficiary Designations

Some financial accounts allow you to name a beneficiary who will receive the account after your death.

When properly established, these arrangements may allow the account to transfer without going through probate.

Again, it is important to confirm how each account is actually titled and whether the beneficiary information is current.

Assets Held in a Trust

Assets properly transferred into a revocable living trust generally do not have to go through probate simply because the person who created the trust dies.

Instead, the successor trustee can manage and distribute those assets according to the terms of the trust.

The key word is properly.

Creating a trust document does not automatically move your property into the trust. Appropriate assets must actually be titled or transferred into the trust for the trust to control them.

This process is often called funding the trust.

What Happens If You Have a Will?

There is a common misconception that having a will means your family can avoid probate.

That is not necessarily true.

A will is an important estate planning document, but it is designed to provide instructions for what should happen to property that passes through your estate.

If you own probate assets when you die, your will may need to be submitted to the probate court so that the person you named as executor can receive the legal authority needed to administer the estate.

The better question is not simply, “Do I have a will?”

It is, “How will each of my assets actually transfer when I die?”

Your Estate Plan Should Consider Every Asset You Own

Effective estate planning involves more than signing a few documents.

Your attorney should understand what you own, how those assets are titled, who your beneficiaries are, and what you want to happen to your property.

From there, you can determine which assets may pass through probate and whether additional planning could make the process easier for your family.

For some families, that may mean creating a revocable living trust. For others, it may involve updating beneficiary designations, reviewing property ownership, or making other changes.

There is no single solution that works for every family.

Know What Your Family Would Face Today

Take a moment to think about your own assets.

If something happened to you today, would your family know what you own? Would they know how your home is titled? Are the beneficiaries on your financial accounts current? Have assets intended for your trust actually been transferred into it?

These are questions that are much easier to answer now than during a crisis.

At Arch Legacy Firm, we help Georgia families understand how their assets fit into their estate plans and create strategies designed to make things easier for the people they love. If you are unsure which of your assets could be subject to probate, contact our office to schedule a consultation. Our probate attorney team can review it with you.