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Probate is the official way that an estate gets settled under the supervision of the court. A person, usually a surviving spouse or an adult child, is appointed by the court if there is no Will, or nominated by the deceased person's Will. Once appointed, this person, called an executor or Personal Representative, has the legal authority to gather and value the assets owned by the estate, to pay bills and taxes, and, ultimately, to distribute the assets to the heirs or beneficiaries.

The purpose of probate is to prevent fraud after someone's death. Imagine everyone stealing the castle after the Lord dies. It's a way to freeze the estate until a judge determines that the Will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised,  that the creditors have been paid, and that all the taxes have been paid. Once all of that's been done, the court issues an Order distributing the property and the estate is closed.

Not All Estates Must Go Through Probate in Georgia: Small Estates

Not all estates must go through probate, though. First, if an estate falls below a certain threshold, it is considered a "small estate" and doesn't require court supervision to be settled. Click here to find out Georgia's small estate threshold and procedure.

Not All Assets are Subject To Probate in Georgia

Second, not all assets are subject to probate. Some kinds of assets transfer automatically at the death of an owner with no probate required.  The most common kinds of assets that pass without probate are:

  • Joint Tenancy assets-when one joint tenant dies, the surviving joint tenant becomes the owner of the entire asset, without the need for a court order. This is called "right of survivorship."  For example, if a house is owned this way, "Jane Sage and John Sage, as joint tenants," and Jane dies, John owns the entire house.

  • Tenancy by the Entirety or Community Property With Right of Survivorship-these are forms of property ownership that function like joint tenancy, in that the survivor owns the entire property at the death of the other tenant, but are only available to married couples.

  • Beneficiary Designations-retirement accounts and life insurance policies have named beneficiaries. Upon the death of the account or policy owner, these beneficiaries are entitled to the assets in the account or the proceeds of the policy.

  • Payable on Death Accounts/Transfer on Death Accounts-bank and brokerage accounts can have designated beneficiaries, too. The account owner can fill out forms to designate who should recieve the account assets after their death.

Living Trusts and Probate

Third, if a decedent had created a Living Trust to hold his or her's largest assets, than that estate, too, won't go through probate unless the assets left outside of the trust add up to more than Georgia's small estate limit. That, in fact, is why that Living Trust was created, to avoid probate after the death of the trust's Grantor.

But for estates in Georgia that exceed the small estate's threshold, and for which there is either no Will, or a Will (but not a Living Trust), probate may be required before an estate can be tranferred to the decedent's heirs or beneficiaries.

Informal Probate

In Georgia, if there's no Will and all the heirs agree on how to divide the assets, and there are no creditors, the court can issue an Order stating that no probate is necessary.

Read more about this process here. If there is a Will, or, even if there's no Will, but the heirs don't agree or the estate has creditors, then a probate will be required.

 

The general procedure required to settle an estate via probate in Georgia is the following:

  1. The Will must be filed in the county where the decedent lived.

  2. The Will must be filed within a reasonable period of time. 

  1. A Petition for Probate must be filed as well.

    1. This requests the appointment of an executor (called a Personal Representative). If there is no Will, the Court will appoint someone to serve as the estate's Personal Representative.

    2. In Georgia, two kinds of probate are available: Solemn Form and Common:

      1. Solemn is the kind of probate most states have: there's a hearing to appoint the Personal Representative, and all the heirs must be properly noticed. Its effects are binding on all parties.

      2. Common Form probate is like a simplified form of probate, no notice or hearing is required, but the results aren't final for four years.  Notice must be given to all heirs and beneficiaries, as required by the court.

       

  2. Once the Petition for Probate is filed, the Court will issue "Letters Testamentary" to the executor/Personal Representative -- this gives the executor legal authority to act on behalf of the estate.

  3. Once the "Letters" are issued, a notice must be published in a newspaper where the decedent lived within 60 days. This is to notify potential creditors of the proceeding. Creditors then have 3 months to make a claim.

  4. An inventory of the estate's assets must be filed within 90 days, if required by the court, upon issuing the letters.

  5. Once all of the creditors and taxes have been paid, a Petition to Discharge  (to close) the probate must be filed with the court.

  6. The Court will issue an Order, distributing the estate's property to the beneficiaries.

  7. Click here to see if Georgia imposes an inheritance tax.

More Info

Click here for a link to Georgia's probate courts.

Georgia's probate forms can be found here.

 

 

 




Jurisdictional relevance: ST

There are versions of this article for each State.



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