People tend to cringe at the word probate, but it’s a necessary legal process for many families. Probate isn’t mandatory under the terms of estate laws in Georgia, but if the decedent left a will, the individual who has possession of it must at least file it with the court even if she doesn’t open a formal probate proceeding.
What Is Probate?
The probate process first ensures that a will is valid. Then, it pays the decedent's outstanding debts and legally transfers any remaining property to his heirs or beneficiaries. The court will appoint an executor or administrator to manage these and other details. If the decedent nominated an executor in his will, this individual is typically appointed by the probate court.
Probate identifies everything the decedent owned at the time of his death that doesn’t pass to someone else through another legal means. The decedent’s creditors are not permitted to place liens against this property, but they'll have an opportunity to make a claim for what they’re owed as part of the probate process.
The court will issue an order closing probate when all creditor claims are either paid or officially denied, for example if the executor has determined that a claim isn’t valid. The order will direct that the decedent’s remaining property be transferred to his beneficiaries and it protects the executor or administrator from being later sued for mismanagement of the estate by anyone involved in the process.
Georgia Probate Law
Georgia probate law requires that a decedent’s will must be filed in the county where he lived within a reasonable period of time. The petition to open a probate proceeding should be filed at this time as well. The executor has two options. He can open a Solemn Form probate or a Common Form probate.
The Solemn Form process is similar to those in most other states. It involves notice to all living heirs – anyone who is closely enough related to the decedent that they would have inherited if she had not left a will. Heirs omitted from the will have a right to file an objection to it if they feel it’s not valid for some reason or they can simply sign the notice acknowledging that they received it.
Solemn Form probate also involves an initial hearing where the court will approve the will as valid whether or not a caveat has been entered. Some wills include self-proving affidavits, a document the decedent has signed under oath stating that he was indeed the individual who signed the will. The witnesses to his will must also sign this affidavit. In the absence of such a document, the executor will have to take an additional step and file Standard Form 6 –Interrogatories to Witness to Will, along with the petition to open probate. The form requires each witness to answer the questions included in it and make a statement under oath that she was present and that she watched the decedent sign the will.
The executor must publish a notice in the local newspaper alerting creditors and other interested parties that the decedent has died. He has 60 days to do this, then creditors have an additional 90 days to make claims for the money they’re owed. The executor cannot transfer property to beneficiaries until he has filed a Petition to Discharge with the court, and the court has issued the order to close the estate.
Common Form probate is a much simpler process. There’s no court hearing, and notice to heirs is not required, but the process won’t officially close for four years. Heirs and creditors have that long to act to make claims against the estate.
A Year’s Support for Survivors
One aspect of Georgia wills and trusts law that is relatively unique is a provision for a year’s support for surviving spouses or minor children. This isn’t actually a lump sum of cash to last the family for 12 months, but rather a portion of the decedent’s property awarded to the spouse or children off the top of the estate. This doesn’t happen automatically. The survivors must apply to the court to request it within two years from the date of death. The court will determine the exact percentage of property the survivors are to receive. A surviving spouse does not have to have minor children to qualify.
When There Is No Will
The overall probate procedure doesn’t vary much if the decedent doesn’t leave a will, but there are some differences. The decedent didn’t nominate an executor so the court must appoint someone to handle probate, and this is usually the surviving spouse or an adult child. Heirs can also elect an administrator by mutual consent. This individual must typically post a bond to insure against any wrongdoing unless all heirs unanimously agree otherwise.
In cases where there are no creditors or if all creditors consent, the court can simply issue an Order Declaring No Administration Necessary stating that probate isn’t required. All of the heirs must also consent to settle the estate this way or at the very least they must not object. In any case, the decedent’s property is then distributed in a hierarchy established by Georgia law because she didn’t make her wishes known in a will.