Probate

Probate

Probate is legal process that takes place after someone passes away. In the simplest of terms, probate is the process of determining that a deceased person’s will is valid, identifying and inventorying the deceased person’s property, paying debts of the deceased, and distributing the remaining property. Probate occurs with or without a valid will. Typically it involves several court appearances and multiple court filings.

Dealing with the death of a loved one is a traumatic experience that we will all face at some point in our lives. The prospect of dealing with insurance companies, government agencies and the local courts can be overwhelming during this painful time. Our goal is to minimize the stress family members face by efficiently and effectively guiding them through this complex process. Whether there is a valid will in place or your loved one dies intestate (without a will), we will work hand-in-hand to properly distribute the estate.

Probate is a court-supervised procedure for transferring the deceased person’s estate to his or her beneficiaries. In the state of Georgia, when someone passes away and their property (estate) is still in their name, the Probate Court in the county where they resided requires that a personal representative (PR) be named and their property goes through a process called “probate”. This is a legal hoop that the family must go through before passing the property on to the beneficiaries of a Will or heirs-at-law when there is no Will.

Can I avoid Probate?

There are three common ways to avoid probate in Georgia:

  • Owning something with a right of survivorship,
  • Pay on death accounts, and
  • Putting your assets into a trust

At Hurley Elder Care Law, the most common tool utilized to avoid Probate is to establish a Trust. Trusts are not just estate planning tools for the wealthy! In fact over the last few decades, people across all income brackets have used trust to plan their estates and to avoid the costs and delays of probate.

A trust is a separate legal entity that controls the assets you place into it. Determining if a trust is the right tool for you is an important part of designing an overall estate plan. The Certified Elder Law Attorney’s at Hurley Elder Care Law can review your family’s situation and recommend a plan that will minimize many of the bureaucratic headaches for your survivors, ease the potential conflict among family members and maximize the assets that can be distributed to your heirs.

What is a personal Representative?

In the state of Georgia, when someone passes away and their property (estate) is still in their name, the probate court in the county where they resided requires that a personal representative (PR) be named and their property goes through a process called “probate.” This is a legal hoop that the family must go through before passing the property on to the beneficiaries of a Will or heirs-at-law when there is no Will.

The PR is the executor(s) of the Will. The executor (s) files a Petition to Probate the Will and attaches the original of the Will and a copy of the death certificate. This Petition is filed in the county where the deceased person resided. The executor is then required to take an oath of office swearing to distribute the property according to the terms of the will. Once the oath is taken, the executor is issued Letters Testamentary, which allow him/her to act on behalf of the estate.

When a person does not have a valid will in place, someone (usually a family member) petitions to be PR, which is called an administrator of the estate. The administrator(s) of the estate files a Petition for Letters of Administration along with a copy of the death certificate in order to become the PR. This petition is filed in the county where the deceased person resided. The administrator is also required to take an oath of office swearing to administer the estate in accordance with Georgia intestacy laws. The administrator is then issued Letters of Administration allowing him/her to act on behalf of the estate.

The probate assets are then collected and put in the name of the estate. The PR has six months after appointment in which to determine the condition of the estate. The PR must publish a notice to creditors within 60 days of taking office. The creditors are paid in a specific order determined by the state legislature. The bad news is that if the assets run out before the debts are paid, those creditors lower on the list are not paid and no one receives an inheritance. The good news is that no one else, including the PR, is responsible for the remaining debts.

In the course of administering the estate, the PR may need to sell property, either to be able to pay the debts and expenses or to better be able to distribute the estate among the beneficiaries. Also, the PR is responsible for filing certain tax returns. The deceased’s final tax return is due by April 15th in the year following the year of death. In addition to the tax returns for the deceased, the PR may be required to file income tax returns for the estate. A federal tax identification number from the IRS may be required for accounts opened by the PR in the name of the estate at financial institutions. This number will also be used on the tax returns filed by the PR for the estate.

After the PR settles all claims, expenses and taxes, the remaining assets are distributed to the heirs. The PR may be required to file certain reports with the probate court in which the PR was appointed. Every PR should keep complete and accurate records of all dealings in the administration of the estate until the PR is discharged. When probate is finished a Petition for Discharge should be file closing the Estate. Once the court is satisfied that the administration was proper and that the PR has faithfully performed the duties required, the court issues an order discharging the PR from office and any further liability.


Probate with a Will in place

The PR is the executor(s) of the Will. The executor(s) files a Petition to Probate the Will and attaches the original of the Will and a copy of the death certificate. This Petition is filed in the county where the deceased person resided. The executor is then required to take an oath of office swearing to distribute the property according to the terms of the will. Once the oath is taken, the executor is issued Letters Testamentary, which allow him/her to act on behalf of the estate.

Probate without a Will

When a person does not have a valid will in place, someone (usually a family member) petitions to be PR, which is called an administrator of the estate. The administrator(s) of the estate files a Petition for Letters of Administration along with a copy of the death certificate in order to become the PR. This petition is filed in the county where the deceased person resided. The administrator is also required to take an oath of office swearing to administer the estate in accordance with Georgia intestacy laws. The administrator is then issued Letters of Administration allowing him/her to act on behalf of the estate.

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with questions about the Probate process in Georgia