United States: Should We Probate Grandma's Will?

At the right bold age of 100, Grandma passed peacefully in her sleep. A “citizen of the world” (but with her sole residence located in Cobb County in the State of Georgia) she lived a long and happy life and is survived by her dozens of children, grandchildren, great-grandchildren, and a very grumpy cat.

                  Grandma let her wishes be known in a thoughtfully drafted and executed Last Will and Testament. Grandma lived longer than your average lady, so naturally she amassed quite a few possessions, and at the time of her passing, she was the unmarried widow of her sole spouse with her only residence located in Cobb County, Georgia. Now that cookies have been eaten and revelries been had, the question remains: Should we probate Grandma’s Will? 

What is probate?

                  Probate quite literally means the “proving of a Will” by proving that a document is the valid Last Will and Testament before the Probate Court in the county where Grandma’s property is located.  If there is additional property located out of state, opening an “ancillary probate” in the county where that property is located may be required. In addition to the technical definition, probate is a process that ensures Grandma’s “probate property” and possessions at the time of her passing are legally transferred to her rightful heirs. The process also attempts to ensure that taxes and debts owed are paid from the Estate. Without probate, there is no way for a beneficiary to legally obtain ownership of a piece of probate property that has not been planned for or disposed of by other means. 

Probate vs. Non-probate Property

                  So what about things like joint bank accounts or assets held in trust? Not all property is considered “probate property” and therefore subject to supervision of the courts for transfer of ownership. “Non-probate property” is property that is transferable by other means and will often go directly to Grandma’s heirs. Examples of non-probate property include: (1) jointly held assets, (2) assets with a designated beneficiary, and (3) assets held in the name of a trust.

                  Jointly held assets like a joint-bank account or a house where ownership is “joint-tenants with right of survivorship” will generally become the sole owner of that property without the need for probate.

                  Similarly, where there is an asset with a designated beneficiary, the asset is “payable on death” or “transferable on death,” and the designated beneficiary may take ownership without petitioning for probate. Transfer of a portfolio or life insurance policy with properly designated beneficiaries would in most cases be considered non-probate property.

                  Finally, where assets are held/owned by a properly funded revocable or irrevocable trust, they are therefore not owned by Grandma and would be distributed in accordance with the applicable trust agreement. Through thoughtful planning, most individuals can avoid the need for probate of their major assets. However, it is extremely important to note that, regardless of whether property is subject to probate or not, it likely still counts for purposes of determining whether applicable State or Federal taxes are owed.

                       On the other hand, “probate property” typically includes property such as: (1) property owned solely by the deceased where there is no otherwise designated beneficiary; (2) property owned as “tenants in common;” (3) property that has no title or documentation of formal ownership, such as personal property.

Grandma’s Will

“I Grandma, a resident of and domiciled in the County of Cobb and State of Georgia, do hereby make, publish and declare this to be my Last Will and Testament, hereby revoking all Wills and Codicils at any time heretofore made by me.”

Grandma’s property includes the following:

Should we probate Grandma’s Will?

                  The short answer is, YES! Grandma house will go to her daughter outright since they were joint tenants with right of survivorship. Upon the passing of Grandma, Carol is now the sole owner of the house. However, each of the other listed items and the remainder of her Estate would require probate in Cobb County to legally change ownership.

                  Of note, a brokerage account is typically an asset that would pass outside of probate, however in this case, Grandma designated her pre-deceased spouse as primary beneficiary. In addition, she designated her Estate as a secondary beneficiary. The primary beneficiary is deceased, and the secondary beneficiary is her own Estate. Under either of these circumstances alone, probate would be required to dispose of this brokerage account.

                  In order to obtain legal ownership over her car, her bedroom set, her Silver Birch china set, brokerage account, and collection of gadgets, the beneficiaries will have to petition for probate of Grandma’s Will. The same is true for the “rest, residue and remainder” of her Estate. Lucky for Grandma’s beneficiaries, probate in Georgia is fairly straight forward, however they would be wise to seek legal counsel to address any concerns, to expedite the process, and ensure things go as smoothly as possible.

                  Grandma lived a long and happy life, and thanks to her thoughtful planning, her loved ones are able to smoothly navigate the road ahead. Best practices during your lifetime are to plan well, revaluate often, and consult with your advisors. Assembling your team ahead of time can make all of the difference.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.