Atlanta Estate Planning, Wills and Trusts, Probate

  Atlanta Wills and Trusts  


Listed below are some of our most frequently asked questions from clients.  If you do not see an answer to your question listed here, please go to our Contact Us page and e-mail your question to us and we will get an answer to you within two business days. 


What is probate?

A statutory process required to change ownership from a deceased person to that person's heirs. This process consists of filing papers with the probate court of the county of domicile of the deceased, obtaining letters testamentary or letters of administration, and implementing the clauses of the will.

How can I avoid probate?

Probate can be avoided by using a Revocable Living Trust as the primary document for your estate plan instead of a will. It can also be avoided by giving away all your assets during life (not recommended).

My friend lost her spouse and said probate was 'no big deal' in Georgia. So, is a trust really necessary?

Sometimes probate goes very smoothly, and sometimes there are problems. Sometimes the survivor of a married couple thinks probate was especially easy when in reality everything was owned jointly with right of survivorship, and no probate was necessary.

Does Magellan Legal handle probate matters?

Yes. We have handled probate in Fulton, DeKalb, Cobb, Gwinnett and Forsythe Counties. We will handle probate in any of the metro Atlanta Counties.

How are the fees charged for probate?

Probate fees are based on an hourly rate. Depending on the projected workload, sometimes flat rates are negotiated.


What’s the difference between a Will and a Trust?

Though many estate plans can become quite sophisticated, the core of any estate plan is based on either a will or a Trust. In its simplest terms, if property is passing through a will, then that will must go to probate, and that legal process must be followed for the property involved. If property is passing through a Trust, it does not have to go through probate.

How do I know which one is right for my family?

Our attorney will outline the benefits and drawbacks to both plans and help you determine which plan is best for your family.

Can I change my wishes once I have set up a Trust?

Absolutely. A Revocable Living Trust is, by its very nature, easily changeable to accommodate your changing wishes, including being completely revoked.

What does it mean to ‘fund’ my Trust and is it necessary?

Also called ‘re-titling’ of assets, funding a Trust is essential to making the plan work properly.  Funding is the simple process of re-titling your assets from your name into the name of your Trust.  Our office does this for you.

Does this mean that I lose control of those re-titled assets?

Absolutely not.  You are both Grantor and Trustee of your Trust and have complete control of any assets that are re-titled into the name of your Trust.  In some ways you actually have more control.

What happens if I forget to transfer the title of an asset before I die?

Whether it’s a share of stock or a house, any asset that is in your name when you die automatically goes through probate.  Afterwards, through the use of a Pour Over Will, these ‘forgotten’ assets are ‘poured over’ into your Trust to be distributed according to your wishes.  A Pour Over Will is included in all of our RLT package plans.

How does a Revocable Living Trust help avoid public incapacitation hearings?

In the world of your Trust, where you essentially set all the rules, you set up a mechanism inside the trust that avoids the need for any incapacitation hearings.  You handle this possibility privately, without court intervention or public knowledge.

What are ‘ancillary documents’?

To complement either a will or a Trust, the use of a Durable Financial Power of Attorney, a Healthcare Power of Attorney, and a Living Will is highly recommended. All of our estate plans will include these documents.

What is a Credit Shelter Trust?

Also called an AB Trust or a By-pass Trust, all of which are the same thing, this Trust is set up inside the Revocable Trust in case it is needed at the death of the first spouse.  If needed to avoid estate taxes, the Credit Shelter Trust may receive and hold assets after the first death, thus avoiding probate taxes up to the current limit.  These assets are generally accessible and controlled by the surviving spouse, but are then funneled down to the heirs at the second death.  It is only available for use by married couples.


I want to open a business and am worried about personal liability to my family if things don’t work out.  Are there any safeguards?

Certainly.  This is the reason Corporations and LLCs were invented.  Properly set up, these entities can protect your personal assets, even if your business has financial problems.  Magellan Legal can set you up in a Corporation, an S-corporation, LLC, Family Limited Partnership or non-profit entity, depending on your needs and other factors. 

How do I know what corporate structure is best for me?

Magellan Legal can guide you to the proper entity that will best suit your needs.

I’m the sole owner/operator of a business.  Can I take advantage of the liability protections of a corporation?

Yes.  As a sole owner/operator, you can still set up a Corporation or an LLC.  See our Services page for a generalized description of these statutory entities.    

How long does it take to set up a Corporation or LLP?

Depending on the turnaround at the offices of the Secretary of State, it takes about three to four weeks to set up.

How do I become a client?

Magellan Legal generally provides a complimentary one-hour consultation wherein your desired results and potential liabilities can be identified. At the end of this consultation, your attorney will suggest a plan of action and outline the costs to implement the plan.  To set up an appointment, please call Melissa at 404-257-8811 or e-mail