What exactly is probate?

Let’s face it, death is not a fun or easy topic to talk about. It is one of those things that many of us try to push to the back of our minds and procrastinate addressing. Hold your hand up if you fall in this category. We bet a good number of you are holding your hands up high (too bad we can’t see you). Last week’s blog discussed “The Business of Dying” which included information on the organizational aspects of death like final disposition and arrangements. This week we want to address a topic that causes great confusion: probate. You may be asking, what exactly is probate?  

Georgia requires Wills to be filed with the probate court.

This is especially important if you are planning to distribute property or assets through the probate process. A Will is a common estate planning tool that enables people to list their preferences about distributing their assets after death.

The probate court determines that a deceased person’s Will is valid and names the Personal Representative (PR) for the deceased’s estate. Probate occurs with or without a valid will. Typically, it involves multiple court filings and the taking of an oath by the PR.  A Personal Representative is often called an Executor when there is a Will and an Administrator when there is not a Will.

Below are the basic steps to probate a Will in Georgia. Hurley Elder Care Law can help guide you through all the probate steps.

  1. Locate the Will. Before you can petition the court to begin the probate process, you must locate the original Will of the deceased. (We always suggest keeping your will in a safe but accessible place.)
  2. File the Will with the probate court.
  3. Inventory the deceased individual’s assets.
  4. Pay any outstanding debts.
  5. Distribute assets.

Dying without a Will

In Georgia when a person dies without a valid Will, they are said to have died “intestate”. This means that the Georgia rules of inheritance determine how the deceased’s assets will be passed to their heirs-at-law. If there are assets, the administrator of the estate (usually a family member) files a Petition for Letters of Administration along with a copy of the death certificate in order to become the PR. The administrator is then issued Letters of Administration allowing him/her to act on behalf of the estate. The administrator’s job is to make sure the deceased’s assets get distributed according to Georgia’s rules of inheritance, which may not be what the loved one would want.

Additionally, we are aware of major problems in countless celebrity deaths such as Aretha Franklin, Amy Winehouse, Bob Marley and Jimi Hendrix. Probate can be a complicated and time-consuming matter – but when someone has a bad estate plan or no Will at all – disputes, legal battles, and family feuds can make the situation exponentially worse.

Probate in multiple states?

Do you own a vacation home in Florida?  A family farm in Alabama?  Might Ancillary Probate be required at the time of your passing?  Ancillary Probate is an additional, simultaneous probate process that’s required when a decedent owned real estate or tangible personal property in another state or states. The laws of a state where property is physically located typically govern what happens to that property when the owner dies—not the laws of the state where the decedent lived at the time of death. This is just one more thing to consider when making your estate plan.

Avoiding probate?

Because probate is time-consuming, potentially expensive, and public, avoiding probate is a very common estate planning goal. A revocable living trust can act as a Will substitute, providing instructions for the management of your assets on your death and, if funded, during your life. You completely avoid probate only if all your assets are in the living trust when you die, or your assets are held in a manner that allows them to pass automatically by operation of law (for example, a joint bank account).

Probate can certainly be confusing!  The experienced attorneys at Hurley Elder Care Law can help you create an estate plan that makes the probate process smooth for your loved ones. Give us a call at 404-843-0121 to discuss your situation.


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