ESTATES
There are a number of different proceedings which may be filed in the Probate Court following the death of a Georgia resident or a non-resident owning property in the State of Georgia. Such petitions are filed in the county Probate Court where the deceased resided at the time of their death, or the county where property of a non-resident is located.
It is suggested that you discuss matters of concern with an attorney who practices probate or estate law. The attorney can assist you in determining which proceeding is the most appropriate for your particular situation. Very often, there are other matters such as tax returns, preparation of deeds, title transfers, etc. which may also make it appropriate or necessary to seek the services of an attorney. If you proceed without an attorney, it will be your responsibility to determine or select the proceeding appropriate to your situation. The Probate Court staff are unable to make the determination or selection for you. The Probate Court staff will, however, be able to answer basic questions about the standard forms, about any deadlines for filing proceedings and how hearings are scheduled.
For many proceedings in Probate Court, there is a Georgia Probate Court Standard Form (GPCSF). Unless you hire an attorney, it is your responsibility to properly complete all forms, which must be either typed or legibly printed in blue or black ink.
The Probate Judge is required by law to remain impartial to all parties, and to treat every case like it may become contested. Therefore, the Judge is prohibited from discussing the facts or evidence in any contested case with a party unless all parties, and their attorneys, if any, are present. You should not ask to discuss your case privately with the Judge, and please understand if the Judge stops any discussion which appears to require the presence of other parties.
Georgia Probate Court Standard Forms are available in the Probate Court, or may be downloaded from www.gaprobate.org.
WHEN THERE IS A WILL
An individual who dies (called the decedent) with a will is said to have died testate. The will is usually offered for probate by the individual who is named in the will as the executor. The process of probating a will is the formal process by which the Probate Court determines a document has been proved to be the last will and testament of the decedent and officially appoints someone to handle the decedent’s estate. Even if a will is not going to be probated, anyone who is in possession of a will of an individual who died must bring the will to the Probate Court for filing. In any proceeding where there are minor children or incapacitated adults who are heirs, the Court will appoint a guardian ad litem.
A will can be probated in either solemn or common form. In the solemn form probate procedure, notice must be given to all heirs of the decedent and becomes binding upon all parties immediately upon appointment of the Executor. The original will must be submitted along with the completed petition, and proof of execution of the will must be provided by either a Self-Proving Affidavit, Interrogatories to a witness of the will, or testimony of a witness. (Interrogatories to the witnesses of a will are a standard form) All heirs-at-law (the persons who would inherit the estate if there was no valid will) must either acknowledge service of a copy of the petition and the purported will, or be served.
In the common form procedure, notice is not required to the heirs-at-law, but does not become binding for four years after the appointment of the Executor. The requirements of providing the original Will and proof of proper execution are the same as with the solemn form probate procedure. Heirs and other interested parties may file an objection or contest at any time up to four years after common form probate.
If there is a Will but the named Executor is unable or unwilling to serve, then an Administrator with Will Annexed must be appointed. If any named Executor is still living, the Executor must sign a declination or renunciation of his or her right to serve, or there must be testimony that the Executor is unable to serve before an Administrator with Will Annexed can be appointed. A majority of the beneficiaries under the will may select the Administrator.
WILL FILED NOT FOR PROBATE
If there is no property to pass under the Will and Letters Testamentary are not required to obtain or take control of the decedent’s assets, filing a petition to probate the will is not necessary. However, the will of the deceased must still be filed with the Probate Court. Real estate, unlike joint bank accounts, may not automatically pass to a surviving co-owner. If the only property in an estate is an automobile and no money is owed on it, title may be transferred through the local Tag Office without probating the will.
WHEN THERE IS NO WILL
An individual who dies (called the decedent) and has no will is said to have died intestate. This means in many circumstances the Probate Court will need to appoint an administrator to handle the property that the decedent owned. When a Permanent Administration is filed, notice must be given to all heirs, and a surviving spouse or sole heir is entitled to be appointed as Administrator. In the absence of a surviving spouse or sole heir, the Administrator may be selected by a majority of the heirs, subject to the approval of the Court, which will decide according to the best interests of the estate. Administrators must post bond and file inventories and returns unless ALL heirs consent to a waiver of those requirements.
A temporary administrator can be appointed to collect and preserve the assets of an estate. All heirs must be named in the petition, but notice is not required to be given to said heirs. A majority of the heirs may select the Temporary Administrator subject to the approval of the Court according to the best interest of the estate. Preference is given to a named Executor of the unprobated will of the deceased. The powers of a temporary administrator are limited to collecting and preserving the assets of the deceased. No expenditures or disbursements may be made without special court order. Temporary Administrators must post bond and file inventories and returns.
If there is no will and all debts of the decedent have been paid or all creditors consent, and there is no other need for a formal administration of an estate, all heirs may agree on how the estate will be divided and a Petition for No Administration Necessary may be filed. All heirs, and any guardians or guardians ad litem of minor or incapacitated heirs must sign an agreement disposing of the estate.
YEAR’S SUPPORT
Regardless of whether or not there is a will, a Petition for Year’s Support may be filed only by the surviving spouse or by someone on behalf of any minor children of the decedent. Minor children must be given a share of a year’s support award. This petition asks that certain specified property be awarded to the spouse and/or children. Notice must be given to all interested parties, including heirs, beneficiaries under a will, and creditors. Property awarded in this proceeding is free of all unsecured debts of the estate and takes precedence over disposition under a Will.
Filing fees for the various estate petitions vary, so you will need to contact our office for this information.
Filing without an attorney