Curious if a will in Georgia always heads to probate court? Most do, but a few exceptions exist. Our firm, Peach State Wills & Trust, was founded in 2007 by Joel Beck, and we aim to provide estate planning and probate help across Georgia. We'll discuss probate, why it often applies, and when a will may skip full proceedings. This knowledge can save families time, money, and stress.

Short Introduction to Probate in Georgia

Probate is the legal procedure of validating a will after someone's death. It involves confirming that the will is genuine, appointing someone to handle the estate (often called an executor), and making sure bills are paid and the remaining property is distributed to the right beneficiaries. Once that process finishes, the court closes the estate upon the petition of the executor.

General Steps in the Probate Process

A typical probate case in Georgia might include:

1. Filing the will: The executor files the will with the probate court.

2. Confirming authenticity: The court looks at the will to be sure it's valid, meeting all necessary legal requirements in Georgia.

3. Choosing an executor or administrator: A person is appointed to handle the estate.

4. Listing and valuing assets: All property is inventoried and appraised if necessary.

5. Dealing with debts and taxes: Any money owed is paid from the estate.

6. Distributing what's left: Beneficiaries receive their inheritance.

7. Reporting to the court: The executor typically reports final details so the estate can be closed.

In Georgia, a will must be filed with the probate court, even if a probate case is not needed. It's worth noting that there's a difference between simply placing the will on record versus opening a probate estate.

Do Wills Always Go Through Probate?

You'll usually see a will proceed through probate in Georgia. That's partly because many estates own items that aren't set to pass automatically. For example, if a home is owned only by the person who died, then that property often needs an executor and the court's approval to transfer ownership unless there was a transfer-on-death deed that keeps the house out of probate.

People sometimes ask, “Why is probate required if I already wrote a will?”

It's mostly about verifying the will in a legal setting and making sure creditors are paid. It also provides reassurance that beneficiaries get what the deceased person intended. A will does not keep you out of the probate process; it is a ticket into the probate process because wills are probate instruments.

If you want your loved ones to avoid the probate process, you must take intentional steps to do that while you are alive. Using things like revocable trusts, transfer-on-death deeds, and beneficiary designations on financial accounts and life insurance are some tools that can be used to avoid probate.

Situations Where Probate Might Not Happen

There are certain cases where a formal probate proceeding may be skipped or minimized:

Joint Ownership With Right of Survivorship

If two people own property together with a right of survivorship, that property passes directly to the surviving owner. It doesn't matter what the will says because the property never enters probate. We see this a lot with married couples who hold real estate or bank accounts jointly.

Beneficiary Designations

Many types of financial accounts let you list a person or persons to receive the funds after you pass on. Life insurance and retirement accounts often work this way. These accounts move directly to the person named as the beneficiary, skipping court involvement.

Trusts

Living trusts, once funded, can hold property for you and transfer it to the right people at your death. Those assets can stay out of probate since the trustee can distribute the property without asking the probate court for permission. Of course, this requires planning, so it's smart to set everything up long before you need it.

If avoiding probate is a priority, then planning in advance is the best strategy. Tools like trusts, payable-on-death accounts, and joint ownership can cut down on paperwork and expense.

How to Steer Clear of Probate in Georgia

Some people want to reduce or skip probate because they've heard it can be time-consuming. Others prefer more privacy, as probate can be public. Here are a few ways someone might avoid it:

●  Use Living Trusts: By placing property in a trust that you manage while you're alive, your trustee can pass those assets on once you're gone.

●  Set Up Payable-on-Death or Transfer-on-Death Designations: Many banks and investment firms let you name the person who should receive the account when you die.

●  Own Property Jointly: When a property is co-owned with a right of survivorship, the court often doesn't need to pass it to the surviving co-owner. This might be a good approach for married persons, but it is often not a great idea from a tax perspective for other relationships, including parent/child.

●  Transfer-on-death deeds: Effective in July 2024, Georgia allows for the use of a TOD deed, allowing a real property owner to identify a beneficiary or beneficiaries to receive the property following the owner's death if certain steps are taken to claim the property. With this tool, we now have a way to keep real estate out of probate without using a trust.

Skipping probate can save money, reduce stress for your heirs, and keep private details out of the public record. However, these methods have to be set up before someone passes away.

Penalties for Failing to File a Will

In Georgia, the law says that the person holding the will must file it with the probate court. If they refuse, they can face legal consequences, like:

●  Civil penalties: The court can demand penalties or fines if there's a deliberate choice to hide or ignore the will.

●  Possible criminal charges: It's unusual for these charges to arise just for failing to file, but it could happen if there's evidence of fraud or refusal to produce the will when asked.

●  Confusion for heirs: If the will isn't filed, the estate might be managed as if there was no will at all. That means the estate could be distributed based on Georgia's intestacy law, which may not match the wishes of the deceased.

Even if criminal action doesn't come into play, the court will likely step in to make sure the will gets filed if it knows about it. It's wise to keep the process honest and straightforward so loved ones don't deal with extra hassle.

Final Thoughts & Next Steps

Georgia's probate process can be confusing, and while many wills move through probate, sometimes the court isn't heavily involved. Remember, filing a will differs from fully settling an estate. If you hope to spare loved ones the hassle or keep certain assets outside of court oversight, early planning helps.

If you have any questions about estate planning in Georgia, you can download our free guide here—no strings attached.

We're happy to discuss your situation at Peach State Wills & Trusts. Give us a call at 678-344-5342 or visit our contact page, and we'll work together on a plan that offers you peace of mind.