Probate is the legal process that a deceased person’s estate must go through before its assets can be distributed to their beneficiaries or heirs. In Georgia the Probate Court in the county in which the decedent lived at the time of their death has jurisdiction and the personal representative (also referred to as the executor or administrator) appointed by the judge is responsible for managing the estate during probate according Georgia’s Wills, Trusts, and Administration of Estates Law. It is a detailed process that requires compliance with the legal requirements. In Georgia, typically it takes about 6 months.
The first step in probate is for a petition to be filed with the probate court in the county in which the decedent resided at the time of their death. GA Code § 53-4-20. If the decedent died intestate, the proper petition would be Form GPCSF 3- Petition for Letters of Administration. If the decedent left a will, the proper petition would be Form GPCSF 4- Petition to Probate Will in Common Form or GPCSF 5- Petition to Probate Will in Solemn Form.
Before admitting the will to probate the judge will review it to make sure that it meets the technical requirements of the law. For example, the law requires that a will must be in writing and that the testator and at least two competent witnesses must sign it. If the judge is satisfied that the will is valid, the judge will admit it to probate. The personal representative can then move forward with settling the estate.
The personal representative must collect the assets, secure them, and determine their value. Estate debts must be paid and claims against the estate addressed. Outstanding tax returns must be filed and taxes paid. Finally, the personal representative must distribute the assets that remain in the estate after debts, expenses, and taxes are paid.
Problems During Probate
Disputes can develop during probate. Oftentimes there are several family members and other interested parties deeply involved in the process. These parties sometimes have different perspectives and competing interests. As a result disputes occur. While most would like to avoid probate litigation, sometimes that is exactly what ends up happening.
Creditors can initiate litigation if the personal representative refuses to pay a claim. Personal representatives are required to pay estate debts, but they are also required to defend the estate against claims that they believe to be invalid or unsubstantiated. Refusing to pay a claim may result in the creditor or claimant suing the estate demanding payment.
Disputes can also develop due to actions of the personal representative that beneficiaries or heirs find problematic. For example, mismanagement of estate assets and other poor behavior on the part of the personal representative can wreak havoc on the administration process and the value of the estate. If a beneficiary or heir believes the personal representative is mishandling estate assets, they can petition the court to order the personal representative to account for their activities.
A will contest is another type of litigation that can occur during the process. A will contest involves a challenge by an interested party to the legitimacy of the will.
Absence of a Will
Georgia’s laws of intestate succession provide a framework for how an intestate estate would be distributed. GA Code § 53-2-1. Under the law, who inherits depends on what relatives the decedent has. If the decedent has children or a surviving spouse, they would be the primary heirs and would inherit the entire estate. Otherwise, the estate would go to the decedent’s parents, then siblings, then other relatives in a stated order of priority.
Simplified Administration Process
Georgia law provides for a simplified process such that under certain circumstances estates can avoid the long, complicated formal probate process because it is not needed. To qualify for the simplified process, these 3 factors must be present:
- There is no will
- The estate has no debt
- All heirs agree to it
GA Code § 53-2-40
To initiate this simplified process, each beneficiary or heir must file an affidavit attesting that all three factors are present using Form GPCSF 9- Petition for Order Declaring No Administration Necessary.