Posted tagged ‘Georgia law’

When Do I Get My Money?

May 9, 2013

 By Ashley Alderman

This question is often the first one asked by beneficiaries of an Estate after someone has passed away. They might ask it in a more tactful manner, but the general meaning of the question is the same: When do I get my money?

We’ve all seen the movies…grandfather dies, the family all gathers in the fancy, wood-paneled office around the large conference table, a lawyer begins reading grandfather’s will, and when he’s finished, he hands everyone an envelope with their check. Unfortunately, this scene is purely fiction. For many beneficiaries, however, the movies might be their only exposure to the probate process prior to the death of their loved one, thus creating expectations that the money will be readily available.

Managing the expectations of beneficiaries is one of the first tasks that should be undertaken by the Personal Representative after the Personal Representative is appointed by the Probate Court. In Georgia, the timing of distributions depends on many factors such as statutory notice periods, whether the estate has outstanding liabilities, whether the estate is subject to estate tax, and the terms of the will itself. I briefly address these factors below. Of course, every estate is different, and unique challenges may delay distributions for various other reasons.

After the decedent dies, Georgia law requires the Personal Representative to publish notice of the decedent’s death to debtors and creditors in the legal newspaper of the county of the decedent. The notice to debtors and creditors must be published within 60 days of the date of qualification of the Personal Representative, and must run once a week for four weeks before the Personal Representative can close the estate.

Under Georgia law, the Personal Representative is not required to pay the debts of the estate until six months from the date of qualification. Therefore, the Personal Representative has six months to determine the debts and expenses of the estate so that the Personal Representative may pay them in the correct order (as mandated by Georgia code), and ensure that all debts and liabilities are satisfied prior to making any distributions from the estate. During the course of the estate administration, the Personal Representative may decide to make partial distributions to beneficiaries prior to closing the estate, which may not present a problem as long as there are sufficient assets to pay the expenses and liabilities of the Estate. However, beneficiaries should not receive their final distributions until the Personal Representative has completely paid all taxes, liabilities, and expenses of the Estate.

If the decedent or estate owes any taxes, the payment of these taxes may prolong distributions to beneficiaries for a period extending beyond the Georgia statutory notice periods. In particular, under the Internal Revenue Code, if the estate has a gross estate value of $5,000,000, indexed for inflation (currently $5.25 million in 2013), then the Personal Representative must file a Form 706, Federal Estate Tax Return. This return is not due until nine months after the decedent’s date of death, and may be automatically extended for an additional six months. If there is a possibility that the estate will owe estate taxes, the Personal Representative should not make distributions prior to the payment of the taxes. If the Personal Representative makes distributions, leaving the estate insolvent or unable to pay the full tax liability, the Personal Representative may be personally liable for the underpayment of estate tax. The IRS generally has 3 years from the date of filing in which to audit the estate tax return, but if the IRS is not going to audit the return, it often issues a Closing Letter much earlier than three years after the filing date stating that the tax liability has been satisfied. I strongly encourage Personal Representatives not to make complete distributions of the Estate prior to receiving the IRS Closing Letter.

Finally, the Personal Representative must follow the terms of the Will when making distributions. If the Will contains contingency requirements or timing specifications, the Personal Representative must follow them when making distributions. For example, the Will might provide that a distribution should not be made until one year after the decedent’s death, or until a beneficiary graduates from college.

In summary, many different factors can affect the timing of distributions to an estate beneficiary. In a large, taxable estate, it could be many years before a beneficiary gets his money…a very different situation than depicted in the movies!