During our many years of practicing family law in Georgia, clients often come to us after a loved one has died with questions about probate, a term that many individuals are familiar with but may not fully understand. If you have been named as the personal representative or a beneficiary in a will, E.N. Banks-Ware Law Firm, LLC can provide you with crucial advice and guidance.
What Is Probate?
Probate is a court-supervised proceeding for managing a deceased person’s estate and distributing the assets to the beneficiaries. Although this may seem straightforward, probate can be a complicated and confusing legal proceeding depending on the estate.
Being named a personal representative (often referred to as an executor) is a serious responsibility. In this role, you are considered a fiduciary and can be held liable for any mistakes or misdeeds. Moreover, managing a loved one’s estate can become more complex if the validity of the will is questioned. This is why it is critically important to have proper legal representation.
Is Probate Necessary in Georgia?
Generally, when a person dies with a will in place, his or her estate may need to go through a probate proceeding, however certain property is excluded from the process including:
- Property in which title was held jointly with right of survivorship
- Property held in a revocable living trust
- Retirement accounts and life insurance policies with a named beneficiary
- Savings and investment accounts with “pay on death” (POD) designations
If there is no will, and the value of the estate is less than $10,000 (the small estate threshold) however, any heir can petition the court for an order stating that no administration is necessary. The court will grant the request if all the heirs agree on how to divide the assets, and there are no debts, or creditors raising objections.
Overview of the Probate Process in Dekalb County, Georgia
Probate proceedings are handled by the probate court of the county in which the decedent lived. The individual named as the personal representative is responsible for carrying out the instructions of the will and distributing the estate assets to the beneficiaries.
The first step is to ask the probate court to be appointed. A hearing will be held at which the personal representative will take an oath. The court will then issue “Letters Testamentary” a legal document that authorizes the personal representative to carry his or her duties. These duties include:
- Notifying beneficiaries and heirs named in the will
- Inventorying and appraising estate assets
- Paying the decedent’s debts to creditors
- Filing the decedent’s final income taxes
- Paying any applicable estate taxes
- Distributing the remaining assets to the heirs
If there is no will in place, the person is said to have died “intestate.” If the estate exceeds the small estate threshold, one of the heirs must ask the court to be appointed the estate administrator. The court will issue Letters of Administration and open the proceeding. The duties of an estate administrator are similar to a personal representative’s duties, however, the estate assets must be managed and distributed according to the intestacy laws of Georgia, which generally gives priority to spouses, children, and parents.