Estate Probate Laws in Georgia

By Mary K. Hogan
Probate Law

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Estate laws govern a deceased person's assets that fall under the jurisdiction of the last will and testament. Estate laws also govern a deceased person's assets if that person did not leave a last will and testament (called intestacy). Each state's estate probate laws differ. If you or someone you know lives in--or owns property in--the state of Georgia, knowing the estate probate laws in Georgia is essential in determining how assets will be distributed after death.

If a Will Exists

According to the GA Probate website, there are four forms of probate if the decedent has a valid last will and testament:

  1. Solemn Form Probate requires that all heirs (determined by the Georgia Code governing intestacy) receive notice of the estate probation. It is possible that heirs through intestacy may not be the same as beneficiaries under the last will and testament. For example, if you are unmarried and have no children, a surviving parent is considered to be an heir. However, under the terms of the will, you may have named only charities as the beneficiaries of your estate. Solemn Form Probate is binding upon all heirs at the entry of the final order.

  2. Common Form Probate may be done with no notification to the heirs. However, it isn't binding until four years after the executor of the estate has been appointed.

  3. Letters of Administration with Will Annexed is employed when the executor of the estate is unwilling or unable to fulfill his duties. In that case, the court will appoint an administrator C.T.A. (cum testamento annexo or with the will annexed) to complete the administration of the estate.

  4. Will Filed Not For Probate is the final type of procedure under Georgia estate probate laws. If a last will and testament exists, but no property passes under the will, no probate is necessary. The code does, however, require that the decedent's will be filed with the Probate Court.

If No Will Exists

According to the GA Probate website, there are three options available for probating an estate if the decedent does not have a valid last will and testament:

  1. Permanent Administration, like Solemn Form Probate, requires that all heirs be noticed. Under Permanent Administration, either a surviving spouse or a sole heir to the estate is entitled to serve as the estate administrator, unless disqualified due to a conflict of interest. If the surviving spouse or sole heir is disqualified, a person who is selected by a majority of the heirs is entitled to serve as estate Administrator.

  2. Temporary Administration doesn't require that the heirs receive notice, however, a majority of the heirs have the right to select the temporary administrator of the estate. This temporary administrator has only limited powers, and if more difficult tasks arise in the estate administration, the court may appoint another temporary administrator with broader powers. In Temporary Administration, disbursements cannot be made from the estate without a special order from the court.

  3. No Administration Necessary can be filed if there is not a need for a formal estate administration. The requirements for No Administration Necessary are that the division of the decedent's property has been agreed upon by all the heirs, and that all creditors have been satisfied. Each of the heirs of the estate (including guardians for minors or adults who do not have legal capacity) must sign a dispositive agreement, disposing of the assets of the estate.

Whether or Not a Will Exists

According to the GA Probate website, there are two laws that apply to estate probate regardless of whether or not the decedent has a valid last will and testament:

  1. The surviving spouse of a decedent, or the guardian for the decedent's minor children, has the right to ask the court to award her specific property from the decedent's estate. In order for this so called year's support proceeding to be filed, all parties who have an interest in the estate must be notified.

If no will has been found and there is reason to believe it is in the decedent's safe deposit box, a proceeding called Petition to Enter Safe Deposit Box can be filed with the court. This petition allows the petitioner to be present as the bank opens the decedent's safe deposit box to examine its contents. If the bank finds the decedent's last will and testament in the box, it is required to deliver it to the probate court to be probated according to Georgia estate probate laws.

Georgia Intestate Rules of Inheritance

Pursuant to Georgia Code-Wills, Trusts & Estates-Title 53, Section 2320, the laws governing the distribution of assets when a person dies intestate (that is, without a last will and testament), follow the line of descendants beginning with a surviving spouse and ending in degrees of kinship beyond first cousins.

  1. Upon the death of the husband or wife without lineal descendants, the surviving spouse is the sole heir and upon payment of that deceased spouse's debts, if any, may take possession of the estate without administration GO

  2. If, upon the death of the husband or wife, there are children or representatives of deceased children, the surviving spouse shall have a child's part, unless the shares exceed four in number in which case, the surviving spouse shall have one-fourth part of the estate and the children shall have three-fourths’ part of the estate; and the surviving spouse and children shall take per capita but the descendants of the children shall take per stirpes. In any case in which a surviving spouse is entitled to the year's support and maintenance under Chapter 5 of title 53, the amount of such support and maintenance shall not be includable in computing the amount to which that surviving spouse is entitled under this paragraph. No election by the surviving spouse shall be necessary to entitle that spouse to the portion of the estate allowed by this paragraph, but that surviving spouse shall be entitled thereto as a matter of law unless that spouse renounces such portion, in whole or in part, within nine months after death of the other spouse GO

  3. Whenever the husband or wife of a deceased person is under the age of 18 years and entitled to a share in the estate of the deceased husband or wife, he or she shall be entitled to take and hold such share without the intervention of a guardian or other trustee.

  4. Children shall stand in the first degree from the intestate and inherit equally all property of every description accounting for advancements as provided in Article 3 of this chapter. Posthumous children shall stand upon the same footing with children in being upon all questions of inheritance. The lineal descendants of children shall stand in the place of their deceased parents, but in all cases of inheritance from a lineal ancestor the distribution is per stirpes and not per capita GO

  5. Brothers and sisters of the intestate shall stand in the second degree and shall inherit if there is no surviving spouse, child, or respresentative of a child. The half blood, both on the paternal and maternal side, shall inherit equally with the whole blood. Brothers and sisters of the whole blood, brothers and sisters of the half blood and brothers and sisters adopted by a mutual parent of the intestate shall stand in the same degree and inherit equally from each other. The children or grandchildren of deceased brothers and sisters shall request and stand in the place of their deceased parents but there shall be no representation further than this among collaterals. If all the brothers and sisters are dead at the time of death of the intestate, then the distribution shall be between the nephews and nieces per capita; and if any of the nephews and nieces are dead, leaving children, distribution shall be made as though the nephews and nieces were alive, the children of the deceased nephew or niece standing in the place of the parent GO

  6. The father and mother inherit equally with brothers and sisters and stand in the same degree GO

  7. In all degrees more remote than those specified in the paragraphs (1) through (6) of this code section, the paternal and maternal next of kin shall stand on an equal footing GO

  8. The grandfathers and grandmothers of the intestate shall stand next in degree GO

  9. Uncles and aunts shall stand next in degree with the children of any deceased uncle or aunt inheriting in the place of their parent GO

  10. First cousins shall stand next in degree; and

  11. The more remote degrees of kindship shall be determined by counting the steps from the claimant to the closest common ancestor and from the ancestor to the intestate. The sum of the two shall be the degree of kinship.

Term uncle as used in this section is limited to those persons who have a common ancestor with the niece or nephew.

About the Author

Mary K. Hogan currently holds a Certified Business Analysis Professional certification from the International Institute of Business Analysis and has held the designation of certified trust and financial analyst. Hogan has been a contributing writer online since 2009 and is currently working on her third children's book.

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