Episode Transcript
[00:00:00] Are you wondering if you need an attorney to probate in a state or have you been named an executor or personal representative and you're just not sure what to do next or where to start? Well, today we're going to get some questions answered for you. I'm bringing in Leanne Sears. She's an attorney with Wessels and Gerber here in Georgia.
She's very experienced with the probate and the probate process. So if you want to learn more about the legal perspective of the probate process, stick around.
All right. So let's, let's bring on Leanne Sears. She's an attorney with the Wessels and Gerber here in Georgia. And uh, we're going to ask some, some, some good probate questions, hopefully get some, some answers for you out there. Uh, Leanne, thank you so much for joining us here today. You are, you handle real estate and, and do a lot of probate.
As well, which often times they go, they go hand in hand. They do. Um, our primary line of business at Wessels and Gerber is, uh, real estate transactions. Primarily residential real [00:01:00] estate. But because quite often that requires being able to deal with houses that folks have inherited. We also specialize in helping folks through the probate process so that they can.
Um, handle the real estate transactions that they need to because nine times out of ten, that's the biggest asset someone has. Yeah, most definitely. So again, so, um, we're definitely going to kind of go at this from, from, uh, an attorney's perspective, obviously, and like a legal point of view. So from that, from that point of view, like what, just give us a brief, like, what is probate?
For someone that may have just, just fallen into it and, um, all of a sudden they're an executor for a will and they didn't realize, uh, or they, they, it kind of happened all of a sudden. And they're looking for answers. Like what? The first question is, what do I do? What is probate? Yeah, probate. A lot of people misunderstand it.
They think that if I've got a will that everything is. You know, you just start acting. But [00:02:00] probate is the process of proving that will. Because wills are paper. They're often many years old. And people can revise their wills. And theoretically they should destroy an old will. Doesn't always happen. So probate is the process of going through a local probate court.
Uh, in the county where the deceased person lived. Um, and, You're proving the will and to do that, you basically need the will and some other documentation and, you know, the help of the heirs of the person who died and you have to prove that will to make sure it's right before you can start, um, handling the assets of the person who's, who's gone.
Right. And, and not just the real estate, but the, the bank accounts and the personal property and all of that really has to be, um, taken care of. So what's the, now people can do this on their own. However, it's quite, it's quite [00:03:00] a daunting task. And in my experience, speaking with families, um, it's, you can get pretty, you can get pretty lost and you're already overwhelmed with dealing with a lot of things.
Um, you know, the family dynamics and all that. So what's the, what's the first thing an executor, first thing a family should do when they're, when someone has passed and they're, they're, um, you know, trying to take care of the state. That's an excellent question because I walked into the office, um, earlier this week and there were two gentlemen here who had lost their mother and I'm not even sure whether they had had the funeral yet.
So I'd say the first thing you need to do is get through. The loss, you know, gather your family members, grieve, go through the funeral before we can do any proving of the will. We're going to have to have a death certificate. You'll get those from the funeral director or the crematorium and that's going to be a week or 2 out from.
So the first thing is get through your, your [00:04:00] loss and the time of dealing with that. This isn't something that's going to happen overnight and it's not something you can rush. That said, it's not a terrifically long process if there is a will. Um, it, you typically need to gather a death certificate, the original will.
And if you don't have that, there are things you can do, but the original will is what the probate courts require. And then, um, you need to know that you've got to be in contact with all of the heirs of, of the decedent. That's what we call the, the deceased person. And their heirs, they're really heirs at law, which means they're next of kin.
If they're married and have children, those heirs are Um, if the spouse pre deceased them, then it's children. And if children are deceased, you go to grandchildren. I help walk through who we need. But recognize that there is a [00:05:00] statute that tells you who the heirs are. In order of Uh, degree of closeness, and you need the closest degree of relative.
So, in the simplest situation, you've got maybe a spouse and children. Those are the, those are the only people you need. If you don't have a spouse, then the children. And there are other family trees you go through if the person was never married and didn't have children, but that's something that you would want to have an attorney help with.
That's the first question that has to be answered, and unless you have access to the statutes, It's not always easy for the people in the family to decide who the heirs are. So that's number one. Death certificate heirs. So you mentioned kind of how it's, if it's pretty straightforward, it doesn't take terribly long.
And so the more complicated it gets, the longer the process could be. So I know there's not a typical probate, but [00:06:00] what can you give us like a timeline of like a pretty straightforward one to like one that might be a little more complicated. Okay, so the best case scenario is like I outlined. Let's say that both parents are deceased and you have children and you have a will and one of those children is executor.
Um, I would say that. From the time we file the petition, we usually can get back what we need from the court to proceed, and we'll talk about that in a second, within maybe a month, um, sometimes even less. I have, um, in Fayette County, I've gotten a turnaround in as little as a week when everything is simple and straightforward.
Um, non typical situations are you don't have a will. Um, the family is not all in agreement. All of the heirs won't sign off on the petition. Things like that can cause it to drag out. Uh, the longest I think I've ever had a probate take, and I don't even think this would happen anymore, [00:07:00] but it was about six months.
Um, it can go longer if people. Are never going to agree. If you drive down the road and you see a house that's fallen in that used to be a nice house and had old people living in it, there's a good chance that folks in the family are squabbling and they're not, you're not able to get through the probate process because of that.
Gotcha. Yeah. So you mentioned, um, you mentioned something that made me think of a question. So what, what happens if there isn't a will? Does it, does the estate still go through probate? Like, how do, how do you handle that? Yes, you do. Every state has laws of intestacy. If you die without a will, you die intestate.
And rather than the property going to who, let's just use mom and dad just for ease of discussion. Mom and dad always intended, let's say mom and dad had um, a niece that lived with them and took care of them and they intended to give the house to the niece. But they died without a will. The niece isn't going to get it.
Even, [00:08:00] I mean, all of the heirs would just have to give it. Because under the laws of intestacy, the niece would not take over the, any of the heirs. And, um, the problem is that the heirs actually would, by law, take title to the property. Um, when you Don't have a will you do follow a very similar petition, but it's called petition for letters of administration and instead of having an executor an Administrator of the state is assigned by the court or and and when everybody's in agreement the family names who they want to do that and that get that person gets to be the administrator and then you go through a very similar process with the exception that a couple things have to be published that Take a little longer.
Uh, best case scenario. No, well, everybody's in agreement. You can probably get that done within about [00:09:00] six weeks. Gotcha. Okay. And what, what happens if there's, um, cause inevitably there, there seems to always be a relative that the family hasn't spoken to in a while that is now. You know, a part of the part of the probate process or part of part of the estate and they have to get in contact with them.
So what happens? How do you handle that? If you have no idea how to get ahold of, of, well, first of all, it should be a comfort to most people that it's seldom that you have somebody that's estranged, that nobody has any idea where they are. That happens. That's better, easier now than it ever has been because of social media.
Most people can track down, but, um, there are instances when somebody. is just gone and it happens more particularly when somebody had no children and the heirs are extended family members. So you have to do a diligent search and at some point you have to file a petition with the court that says, here's all the things [00:10:00] we've done to locate them and you have to do, they have a list of things, and you have to do at least three or four of those things to try and find somebody.
Then you file an affidavit of diligent search and And, uh, submit that to the court, and then the court will publish notice to heirs, which will run in the paper, um, for four weeks, and then at that point, you move forward. But, when that heir is missing forever, there are things, additional things that have to be done, like you have to post a bond with the court, and you have to basically, the administrator will have to safeguard the interest of that missing person in case they ever come back.
Let me also say this for folks that are listening outside of Georgia. Most states probate processes are fairly similar. There's a uniform probate code that a lot of states have adopted. But there are nuances that differ. What you do with the missing air may differ from state to state. And even [00:11:00] within the state of Georgia, there are some nuances that are different from county to county.
I filed a petition this week. Um, that had an error in the death certificate. And when I called the probate court to, to say, you know, I've explained it in the petition. Is there anything else I need to do? They said, no, we don't even need a death certificate. That was the first time I'd ever heard of that.
It was kind of bizarre. Yeah. Yeah. That's a good point though. There is like the local rules and laws and ordinances, definitely Trump. Let me interject one other thing in small counties. The probate judge may not even be an attorney. Um, we have two types of probate courts in Georgia and in the bigger counties, probate judges have to be attorneys, but in other states, in other counties, they may not.
Gotcha. Okay. That's good. That's good to know. I mean, it is a lot. It is a lot. And it can be overwhelming for families. So I think it, in my opinion, of course, we're, we're a little bit biased here, but get hiring the help or getting the help of an attorney. To walk you through [00:12:00] this is, is just, uh, uh, first of all, it's peace of mind and you make sure that you're, you're getting everything done and crossing all the I's and dotting all the T's.
Not only that, but let me say this, the, when you inherit a house, you're not in the chain of title. The chain of title is, you can draw the diagram to show who's owned the house over the life of the house. And the person who inherited that house is not in the chain of title, because the title still is vested in the deceased person.
So, if you make a mistake in probate, and then you go to sell that house, You've got title issues to clear that are going to cost more money to sell the house. So a lot of times you can be penny wise and pound foolish. It might make sense to probate. And I'm not saying you can't do it on your own. I've had um, a lot of diligent people, but when you go to the probate court, you're not going to help answer a whole lot of questions.
They're [00:13:00] not going to walk you through it. They're going to tell you to go and get an attorney. And this is not a super expensive process. Um, especially when compared with. You could increase the cost for selling your house and this can come out of the proceeds of the sale of the house if you handle it well.
Gotcha. Yeah, that brings up the next question I have for you. It's like roughly, and of course every case is different. I want to make sure to point that out. But roughly with a straightforward probate, how much would it cost for, to hire you for instance? On a, on a straightforward basic probate with a will, a couple thousand bucks.
Okay. And probably three to 400 of that are going to be your court filing fee. So, 1, 500, 1, 600 is what the attorney meant. Gotcha. Well worth it. It takes quite a few hours, so, um, I would say that our hourly rate It's probably less on some probates than it would be other work we do, because it is [00:14:00] a flat fee.
Um, unless there are complications, we don't add on to the fee that we got you. Yes, I mean, that's it's it's kind of a no brainer considering all the other. Stuff that you have to deal with when you lose a loved one, for sure. It's certainly cheaper than the funeral and the headstone. Yes, most definitely.
Here's my next question. And it's going back to the, once an executor has been appointed, um, and we know who the executor is. A lot of times this is, people do this maybe once in their life. Um, what, so what do you, what do you do? What are your, what are your responsibilities? Um, what are some things you got to look out for and cause it is a, it is a position of responsibility when you're taking care of the estate.
So like what are some things that, that you have to do or should do as an executor to take care of the estate? You have an executor when there's a will and you have an administrator when there's not a will. Being an executor is a little bit [00:15:00] easier. Um, most wills that are drafted by attorneys, and let me put in a plug here, get your will done by an attorney, because the most difficult probates I handle are the ones where folks buy a will kit, or put a, or hand draft a will, and they don't have what they need, and it costs a little more to probate, and it takes a little longer.
It's very difficult. So, but if you have a good will, The executor duties are fairly straightforward. Hopefully, the will spelled out that the executor has full powers to act on behalf of the estate without checking back in with the probate court. So they don't have to file things like reports or annual inventories or give statements to the heirs.
But if that's not in there, then they do have some reporting, uh, responsibilities to the court. But they're responsible for carrying out the terms of the will. So, for example, this, this petition that I filed last week, it had 26 heirs, but none of them got anything. The executor is responsible for delivering the assets of the [00:16:00] estate to the charities that she left the money to.
And, and the executor has a fiduciary duty to do that. Um, in an administration, it's less straightforward because you have to go through the laws of intestacy and the law defines who gets what, and all of that has to be divided in accordance with the law, and we help advise with that, um, and like I said, there is a fiduciary duty.
You have to set up a bank account, the assets of the estate. As they're liquidated and turned into money or you're taking money out of old bank accounts, they have to go into the estate account and then it has to be distributed in accordance with the will or the law. And after all of that has been done, you can petition to be released and for an executor, typically about six months later, you can be released and everything's finished.
For an administrator, it can take longer. Gotcha. What if you are, what if you're unwilling or unable to [00:17:00] serve as the executor? When you've been named in a will, what happens then? If you have a will prepared by an attorney, there should be an alternate executor. So, for example, many people's spouse is their executor, and then maybe one of their adult children is the alternate.
And if, if you're fortunate enough to have a long life, it may be that your spouse is not able or willing, and then all they have to do is sign something saying that they are, they don't, they're unwilling or unable to be the executor, and the alternate can act in their place. If there, if the, um, if the alternate doesn't want to act, there's a petition you can file with the Will Annex to show what the will is, and then you can ask that an administrator be appointed.
Gotcha. Now, we, you know, we would love all these probates to be like seamless and, and straightforward and everybody gets along and happy, but sometimes it's not. So what, what happens when you have a family member or a couple of family members [00:18:00] and no one can really agree? How to proceed like what what happens?
And is that is the executive can they make unilateral decisions or how does that work? well, essentially and I had this happen a few weeks ago where there were just two living children and one of the children didn't like some aspect of the will or didn't think it was exactly what his dad had intended and He just refused and in a simple The heirs sign an assent, they acknowledge the will and the petition, and they say that, yes, we're willing to go forward.
And then you move forward when family members don't agree. Generally, what happens is they won't sign that document and they have to be served. by the sheriff's department showing that they got a copy of the petition in the will and they have 30 days to follow a challenge or respond. And if they don't, then it moves forward.
If they do, the court will hear [00:19:00] challenges. I will tell you that in Georgia, the probate courts Respect the wishes of the decedent, as a general rule. Um, it's unusual for challenges to get a lot of attention, unless there's something going on, like family members who are saying, that's not my dad's will, that's fraudulent.
They, you know, there was coercion. And then, of course, you're going to have You're going to have probate litigation. I don't even handle probate litigation. I would refer you to a probate litigator for that. But in most instances where somebody just says, you know, Hey, my dad, you know, left me the grand piano and the grand piano is no longer at the house.
That's no basis for challenging the will. Gotcha. Yeah. And this is, I want to mention that this is, this is a rare occasion where somebody is going to take it that far to challenge. It is. And not only that, but when I, we also [00:20:00] do estate planning. And when I draft wills, we try to draft them in ways that don't put an executor in that position where dad left a grand piano and then, you know, they downsized.
The grand piano has been gone for 15 years, but somebody is unhappy because it's not there and it was gone before the person passed away. We try to keep personal property lists out of wills so that the executive doesn't, isn't likely to have challenges. And the one that I had, um, a few weeks ago, that was exactly what happened.
Uh, there was some personal property that he thought had disappeared and he accused family members of selling it after dad died. And that didn't seem to be the case of what had happened. But, um, you know, it's kind of like divorce. When you're going through death or divorce, nobody's happy. And so you kind of want to make a simple will.
And, and set your state up where it doesn't lend itself to people being able to challenge it. Yeah, yeah, it's, emotions are very are very high [00:21:00] for sure. And it's, um, so the more simple and the straightforward the will is in turn, the more straightforward the probate process will be. Exactly, exactly. So I know we're kind of, thank you so much for your time.
You're very, very generous with your time. You have like two more questions, two or three more questions. Um, What, what is letters of, of testamentary? Like, what is, where does that come in? And that's a, you know, there's a lot of, there's a lot of terms when it comes to probate that people don't hear every day.
That's, that's one of them. I think that that pops out one of the first terms you hear. So can you explain that? Okay. So yeah, an analogy, you know, if you're a Harry Potter fan and you've seen the Quidditch game letters, testamentary letters of administration, they're the golden snitch, no matter what went on in the game, that's the end game.
You want to hold the golden snitch. Um, When the probate process finishes, the judge will, um, administer letters of testamentary or letters of administration. That document [00:22:00] enables you to act on behalf of the estate. That's the document that allows you to sell the house. That's the document that allows you to get the, the decedent's bank account money and put that into an account for the estate.
It allows you to set up a bank account for the estate. And you do have to set up a bank account for the state, the estate, and you have to get an estate. Tax ID number and, um, you can get the tax ID number before the letters of administration or the letters testamentary are issued, but you can't get money out of the accounts.
Anything that flows through the estate, you need those letters, the golden snitch and you show it to the bank and they then let you proceed with your business. Gotcha. So it's not, it's not, it doesn't like close probate, it doesn't settle the estate, but it gives you the authority to. To start the process to settle the estate essentially, right?
Exactly. So the waiting time is between when the person passes away and then, uh, you go through the probate process, you get the [00:23:00] letters. And then at that point, you can start handling the business of the estate with those letters, testamentary or letters of administration. Gotcha. All right. One more question.
And then we'll, um, uh, before we, before I ask the last question, I just want to say like, well, I'm going to put contact information for Leanne and Wessels and Gerber in the show notes. Um, my contact information will be there as well. So if you, this may have. Um, answer a lot of questions, but it may have sparked a lot more questions.
It seems tend to do that when you start digging into something. So, um, definitely reach out. I know Leanne's more than happy to, to answer questions and help. I am also, um, but the one last question is, um, that I have is besides the home, does all the personal property go through the estate? Like if there's a, say there's an RV.
Or there's a, um, I don't know, a photo books, um, down to photo books, like does the personal property have [00:24:00] to go through probate probate as well? There's legally and technically, and then practically legally and technically, yes, it does. However, there is no inventory or list of assets, even in an administration typically.
So most wills say, you know, my spouse gets everything. And if my. spouse predeceases me then everything goes to the children. Most personal assets, non titled personal assets, jewelry, china, furniture, clothes, all that stuff, usually the family goes in and cleans that out and they figure out how to divide it.
Not, and we recommend putting a list with your will of those personal items who you want to get them. It's a codicil and it can be filed with the probate court, but it's not legally binding and that way if that grand piano disappeared it's not going to hold up probate, But if you have that grand piano, you can say, I wanted, you know, my niece to have that because she plays piano.
[00:25:00] So, um, personal property typically doesn't, isn't something that I ever deal with, but it is something that does have to be dealt with, um, and can cause ill will. So, you know, some people put family members names on personal property. And if you respect what the decedent wanted, then that's easy. But more specifically, anything that has a title, a car, an RV, a house, Um, even bank accounts and investment accounts can pass through the will.
Typically, with a bank account or an investment account, you can name beneficiaries. And by presenting a death certificate, then the beneficiaries can take and you don't have to probate. So, if you have someone Uh, who downsizes and goes to live in a senior living facility where they rent and they don't own titled assets.
They may not need to probate if they have beneficiaries named for their bank accounts and their investment accounts. And then as far as cars and RVs are concerned. [00:26:00] Nine times out of ten, if, if there's a spouse, or maybe a, an only child, or often counties will work with you and not require probate just for those assets, but it differs county to county, I would always call the town and county tax commissioner and say, You know, here's the deal.
My mom just passed away. She had a car. What do I have to do to put that in my name so I can sell it? And sometimes you, most of the time you don't have to probate, but sometimes you do. Gotcha. Gotcha. Well, thank you so much. I know, um, I just want to reiterate that when you, if you attempt to do it yourself, it's possible.
You can do it yourself, but you'll, you'll go to the, um, you know, the courthouse or the, it's a, Government institution, and you'll get a stack of forms with very little direction on which one to fill out and what to do next and really how to how to do it the right way. So I, of course, like I said, we're biased, but I truly believe that the thousand couple thousand dollars is great insurance.
Well worth it. [00:27:00] To make sure it's all done correctly and all done the right way. So you don't have to worry about problems. Like that's the last thing you want to worry about is like something coming up or you, it holds up that you get under contract with the home. The title search digs up this problem and it wasn't handled right in probate.
So then you could lose a buyer, all sorts of things. So. So, yeah, that's my, that's my plug right there. That's my advice for, for anybody listening out there. Um, so thank you so much, Leanne. How, how do we get ahold of you if, uh, if, if somebody has more questions, they want to reach out, you're going to put the phone number and the email address, either one of those, um, it'll be the main email address for my, my home office here in Noonan and, um, the phone number.
And regardless of, we have several offices. Um, around the metro Atlanta area and regardless of where I might be in a given day, you call those numbers or send that email and, and our staff will get in touch with me. Excellent. Yeah. Yeah. If you just Google [00:28:00] Wessels and Gerber, it, it'll pop right up first, the first search, um, so you can definitely get call any of the office, ask for Leanne Sears and absolutely help.
You've helped me many, many times. things. So I can attest, um, that you're willing to help and you're giving for sure. So thank you so much. Thank you. Yeah. And, and I will say that this is one of the legal processes where in most cases you do not have to worry about an attorney, um, billing you every time you have a 12 minute phone call.
Um, good point. It's a, it's a process where. At least in my practice, I tend to take seriously the fact that this person needs help, is not in the strongest emotional state to deal with things by themselves. And I look at it as a time that we need to hold your hand and help you get where you need to go.
Good point, yeah. Thanks for bringing that up too, Gay. Because it's not billable hours for every minute that you're on the [00:29:00] phone. That's why I like doing this. I don't fill out a time sheet every day when I do this work. And, um, I like it because we're helping people that need help and, uh, you know, most of the time, this is not the practice that spurs a lot of lawyer jokes.
This is where people actually appreciate the things that we do. Definitely. Same is true for your real estate agent because when you have a house that has probate issues in the back chain, I can tell you there's a team of people working to help you solve those problems that are not easy to solve by yourself.
Most definitely. Yeah. And one, one more thing I'll say before we wrap it up here, but it's the relief when, when someone finally solicits our help for probate and, and real estate that's in probate. The relief on their face through the tone of their voice. It's just, it's amazing. It's, it's gratifying for me.
I think it is for you too, that just the, when I have somebody, these [00:30:00] two guys that showed up, that was one of the first things I mentioned, I'll close with that, that were in the office. They were, the stress was visible. They came in and sat down without an appointment. And when I said the first thing we can handle this for you and you can go back home and we can do everything remotely.
You don't have to come back here. We'll get this finished for you. The relief was palpable. It really was. Yeah. I love it. It's, it's, it's definitely great to help people. So anyways, thank you so much. Um, Wessels and Gerber, the contact information will be in the show notes. And if you have any questions, don't hesitate, reach out.
Thanks Leanne. Thanks TJ. I appreciate you having me.
