James Miskell

“Trick or treat” rings out every Halloween as kids go door to door hoping for their favorite candy. My kids love sorting the candy at the end of the night and finding surprises in their candy haul. Part of the fun and excitement of trick or treating is the uncertainty —you don’t know what you are going to get. Dying without estate planning is a lot like trick or treat for your surviving family members—you don’t know what they are going to get.

If you die without advance planning, any property you own (your estate) will likely end up in Probate Court. An Administrator will be appointed by the Probate Court of the county where you resided when you died. Usually, a family member will file a petition asking to be appointed the Administrator of the estate. The Court will require that all of your heirs be notified and that a notice be published in the newspaper alerting creditors that they can file a claim against your estate to recover any debts they claim you owed. If any of these heirs believe that they are better suited to be Administrator, they can object to the petition. Eventually, the Court will either grant the petition or appoint another person to be the Administrator. 

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The property in the estate will be distributed according to Georgia law—not necessarily according to your wishes. The Probate Court will determine who qualifies as an heir. The portion of the estate that each heir is entitled to receive will be based on how closely that heir is related to you. Once the hierarchy of heirs is determined, the Administrator will distribute the assets of the estate. If the assets of the estate cannot be fairly distributed, the Administrator will make decisions about which assets to sell and how to sell those assets. The sale of assets can be time consuming and result in family members waiting long periods of time to receive funds.

Uncertainty is fun and exciting at Halloween but excitement and uncertainty are not so fun for your heirs during a time when they are grieving. Make sure your family doesn’t look back on the administration of your estate and think, like Charlie Brown at Halloween, “I got a rock.”

James M. Miskell received his law degree from the University of Georgia in 1993. His Asset Protection and Estate Planning Law practice is located in Lawrenceville, Georgia. He offers free educational workshops and consultations to assist clients as well as fellow professionals in creating individualized solutions.

For more information visit:http://www.attorneymiskell.com/Attorney/

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