Leading Georgia Probate Lawyer

Probate: Where There's a Will

If the proper estate tax planning documents were drafted for and executed by the decedent, the probate process is much simpler.  Handling estate matters after the death of a loved one is always difficult, but having a will makes it less stressful.  The term "probate" technically refers to the process of establishing the validity of a deceased person's will but also encompasses the procedures of protecting the assets of the estate, paying the legal debts of the estate (including taxes), and distributing the remaining property in the estate in accordance with the will.

Unlike many states where probate procedures are time consuming and expensive, probate in Georgia is a relatively streamlined, inexpensive process.

The first step in the process is to file a Petition for Probate in the county where the decedent lived.  The "propounder" of the will, usually the executor named in the will, may file the Petition to Probate in "common form" or "solemn form."  Common form probate is probate without notice to anyone upon the testimony of one subscribing witness and is not conclusive for a period of four years.

Solemn form probate is immediately conclusive upon all properly notified heirs and upon all beneficiaries under the will.  The particular option one should choose varies with each situation.

If all the requirements are met, the propounder is sworn under oath and becomes the "Executor" of the estate.  The probate judge will then issue "Letters Testamentary," which officially document the authority of the executor to administer the estate.

The executor has a fiduciary duty to notify creditors, pay taxes, and carry out the wishes of the testator.  Probate time limits are very strict.  The specific duties and powers of the executor are established by Georgia statute and may be incorporated by reference within the will.

Administration: Where There's No Will

When someone dies "intestate," or without a will, the probate court judge can appoint an administrator to pay the debts and disburse the decedent's property to his heirs at law.  To begin the process, application must be made in the probate court of the county where the decedent died if he was a Georgia resident.  If he was not a resident, then application should be made in the probate court of the county where some or all of the estate property is located.

Anyone of sound mind can qualify as administrator, but priority is usually given to the spouse. Under certain circumstance, like where there is a pending divorce action, priority falls on the next of kin to be administrator.

Administration of the estate may also be requested when an executor named under a will cannot or will not serve.  In this case, a petition for administration is filed with the will "annexed," or attached. A majority of the beneficiaries under the will can agree on an administrator or the probate judge may appoint someone if they cannot agree.  In certain limited situations, no administrator need be appointed to handle the estate. The court supplies an order stating that no formal administration is necessary.  This can be useful where one or two assets, even real estate, must be legally transferred to the heirs.  Among other requirements, there must not be a will and the debts of the decedent must be taken care of.

If you have additional questions, please refer to a manual entitled "DUTIES AND RESPONSIBILITIES OF PERSONAL REPRESENTATIVES OF DECEDENTS' ESTATES IN GEORGIA, A Handbook to Guide Personal Representatives Prepared and Presented by Georgia", published by the Council of Probate Court Judges and the Fiduciary Law Section of the State Bar of Georgia

If you were named as executor or if you may serve as fiduciary in the estate of a loved one who has died in Gwinnett County or metro-Atlanta, and you would like to learn more about your options, Charles Scholle can help.  Based in Gwinnett County, the Law Offices of P. Charles Scholle represents clients throughout Metro Atlanta and the State of Georgia.  To discuss your case at a free, confidential phone consultation, please contact the firm online, Email, or call 1-866-972-5287 nationwide and 770- 717-5100 in Atlanta.