In Georgia, what is probate and what steps are required to administer a loved one’s estate.
Probate is the legal process through which a deceased person’s estate is administered, debts are settled, and assets are distributed to heirs or beneficiaries. In Georgia, the probate process is overseen by the probate court in the county where the deceased person lived when they died.
To be clear, everyone has an “estate.” Think of an estate as every single thing a person owned (in their name) when they died. That could be things, money, property and even a business. If there are beneficiary designations, it will come out of the estate and go to the person or persons identified in the designation. These could include an insurance policy, retirement account or maybe a stock account. What is left is the “estate”.
The estate must be administered. It cannot just sit there forever. Well, it shouldn’t sit there forever in the person’s name who passed away. Probate in one way to administer the estate. Probate administration will happen if the person did not have any estate plan in place OR they had only a Will (aka Last Will and Testament).
This article is about the steps that take place in a Georgia probate of an estate.
1. Filing the Petition for Probate
Probate doesn’t start automatically. It has to be initiated. That happens by filing a petition with the local probate court. This petition will be for an estate with a Will or without:
Probating the Will: If the decedent (the person who passed away) had a valid will, the person named as the executor (personal representative) in the will typically files this petition.
Petition for Administration: If the decedent did not leave a will (died intestate), a family member or an interested party files a petition to be appointed as the estate administrator. So anyone can file the petition and could potentially get appointed.
Once filed, the court will validate the will (if one exists) and officially appoint the executor or administrator to handle the estate. They issue this person “letters” which proves their authority to act on behalf of the estate.
2. Notification of Heirs and Beneficiaries (click here to learn the difference!)
Georgia law requires that all heirs and beneficiaries (in cases with a will), be notified of the probate proceedings. These individuals will have the opportunity to contest the will if they believe there are grounds, such as fraud or undue influence. In addition, the court will likely require publication in a local newspaper to notify creditors of the probate.
3. Appointment of Executor or Administrator
If the last will and testament names an executor, the court will confirm this individual as the legal representative of the estate. If there is no will, the court will appoint an administrator, typically a family member or close relative. But anyone can step forward and ask to be appointed in this situation.
Once appointed, the executor or administrator takes on the responsibility of managing the estate. This includes gathering assets, paying debts, and distributing property to the heirs or beneficiaries.
4. Inventory and Valuation of Assets
If not specifically waived in the Will, the executor or administrator is responsible for creating an inventory of all the estate’s assets. This may include:
Real estate
Bank accounts
Personal property
Investments
Retirement accounts
Life insurance payouts
After the inventory is complete, the assets must be valued to determine the total worth of the estate. This information will be used to pay off debts and distribute the remaining assets.
5. Payment of Debts and Taxes
Creditors take first. Debts must be paid in probate before any money can go to anyone named in a Will (a beneficiary) or anyone who is considered an heir. This is important for smaller estate or estates that have potentially large amount of debt to take care of on behalf of the person who passed. So medical debt, credit card debt, etc. This is the step where the court will require publication so all creditors have an opportunity to step forward and file a notice of the monies/property owed to them.
An Executor or Administrator is required to:
Settling any outstanding debts, such as mortgages, credit card balances, and loans.
Paying final medical bills or funeral expenses.
Filing the decedent’s final income tax return and paying any taxes due.
In some cases, if the estate is large enough, the executor may need to file federal estate tax returns (though Georgia does not impose an estate or inheritance tax).
If the estate does not have sufficient funds to cover the debts, Georgia law requires the executor or administrator to sell estate assets to cover these obligations.
6. Distribution of Assets
Once all debts and taxes have been paid, the executor or administrator will distribute the remaining assets to the heirs or beneficiaries according to the will or Georgia’s intestate succession laws. If there was a will, the assets are distributed as the decedent directed. In intestacy cases (where there is no will), Georgia law dictates how assets will be distributed among family members. Something many are surprised to learn about Georgia intestacy laws is that if you are married AND have children and die without a Will, your spouse does not inherit one hundred percent of the estate. Instead, the spouse receives at least 1/3 of the estate (if more one child) and the remaining 2/3 will be divided up between the children of the person who passed. Who gets the monies is a matter of whether the person was married, did they have children, how many children.
7. Closing the Estate
Once all assets have been distributed, the executor or administrator must file a final report with the probate court. This report includes a detailed account of the estate’s administration, listing all actions taken, debts paid, and assets distributed.
If the court approves the final accounting, it will issue an order to close the estate, officially ending the probate process.
Probate in Georgia requires very specific steps to take place. Some of these steps can be drawn out by reasons outside of your control. It is very structured. The process does ensure there is supervision of the administration process. But at what cost. Working with an experienced probate attorney can help streamline the process and ensure that legal requirements are met, reducing delays and potential disputes among heirs. An experience attorney can actually help you get a plan to avoid probate, if that is something that interests you.