What Is Probate?
Probate is simply the term used to identify the process of settling a deceased person's estate, whether the decedent died with or without a Will. This process involves appointing a person to manage the estate who will then review and gather the assets of the decedent, pay off any valid debts of the decedent, and then distribute any remaining assets in accordance with the decedent's Will, if there was one. If no will is present, then the decedent's assets will be distributed in accordance with Georgia's laws of intestate succession. The probate process occurs in Georgia through the Probate Courts of each of its 159 counties.
Not all assets of the decedent are distributed through the probate process, however. The assets that do go through probate, referred to as probate assets, usually include real estate, stocks/bonds, bank and investment accounts, or vehicles, where such assets are only in the name of the decedent and did not have any joint owners or named beneficiaries. Assets not distributed through the probate process, called non-probate assets, include accounts and property jointly owned with another with right of survivorship, assets which list a beneficiary (such as an IRA, a 401(k) and life insurance policies, for example), and assets with a pay on death beneficiary (often titled as POD (pay on death) or TOD (transfer of death).
If there are no disputes regarding the admission of the decedent's Will to probate (if there was a Will), the payment of creditor claims, and the disbursement of the deceased's assets to the heirs or beneficiaries (such as family members, loved ones, and charities), then the process of probate is referred to as “uncontested.” At Peach State Wills & Trusts, our probate practice focuses on helping families and loved ones in settling uncontested estates.
What are the steps in the probate process?
In all probate cases, the first thing that must be done is to have a personal representative appointed to manage and settle the estate. In a case where the decedent had a Will, the Will typically nominates a person to serve as Executor. In cases where there is no Will, someone is appointed to be the Administrator.
To have a representative appointed, information about the decedent, his or her family members, and known assets are gathered and then used to prepare the proper forms to file with the Probate Court. Notice of the filing may be required to be given to all heirs (and listed beneficiaries in a Will if there is one), and if there are no objections, the Court will then issue Letters Testamentary (for probate of a Will) or Letters of Administration (for intestate probate – where there is no Will) to appoint the representative and give him or her authority to manage and settle the estate subject to oversight of the Court. If the decedent had a Will then, as part of this process, the Probate Court determines whether the Will is valid and executed in accordance with the law, and can therefore be admitted to probate.
Following appointment of the representative, he or she will then notify creditors and debtors of the decedent's death and provide an opportunity for creditors to file their claims. The representative will seek to identify all the decedent's probate assets and marshal those together. After this is done, an inventory of the probate estate is prepared and filed with the Court, if required. After sufficient time has lapsed following a notice to creditors, the representative shall determine what creditor claims are valid and pay those off in whole, or perhaps partially in order of priority under the law if the estate is insolvent.
Following payment of creditors, the remaining assets are then distributed to the appropriate heirs or beneficiaries. If it is a testate estate, meaning there was a valid Will, the Will is going to dictate where the assets are distributed. If it is an intestate estate, meaning the decedent had no Will, state law determines how the assets are paid to the decedent's natural heirs. After distribution of all assets, the representative may then file a petition to be discharged and to formally close the estate.
Do I need to go through the probate process?
Whether a probate case needs to be opened depends on whether there are assets that need to be transferred to beneficiaries or heirs (or creditors paid) through the probate process.
If the decedent had a Will, and there are no probate assets that can be transferred through the probate process, then the Will should still be filed for informational purposes with the Probate court. Georgia law requires someone in possession of an original will of a decedent to timely file the document with the Probate Court.
Why use a lawyer for probate?
Thankfully the process of going through probate in Georgia is relatively easy and efficient if everyone agrees, though it does take some time and cannot be completed immediately. While it may seem complex or overwhelming to some, this process is made more efficient when using a probate lawyer to help you navigate through it, especially if you are unfamiliar with probate and have many questions.
Among other things, your probate lawyer can counsel you on whether to file a petition for a year's support for the spouse and/or minor children. A year's support claim may result in assets going to a surviving spouse and for minor children ahead of payments to many creditors. This may be a good strategy if the estate does not have sufficient assets to satisfy creditors and provide for the case of the surviving spouse and minor children. Likewise, in very simple situations with no creditors and all heirs in agreement, a petition for no administration may be an appropriate way to fully settle the estate and distribute assets by agreement of the heirs in certain cases where the decedent died without a will. A probate lawyer can help you determine the best methods to settled your loved one's estate in an efficient manner.