Georgia law governs estate property transfers after someone dies. A court-approved executor holds a probated estate's assets and transfers them by executor's deed to beneficiaries named in the decedent's will. However, there will be occasions when a formal probate proceeding is unnecessary to transfer real estate to heirs or beneficiaries.
Georgia Probate Process
Probate is a court-supervised process that distributes a decedent's estate to their heirs or beneficiaries. Probate gives an individual who was close to the decedent authority to gather their assets, distribute them, and pay the deceased's debts and taxes. This person is typically a family member or a spouse named in the decedent's will. In Georgia, probate takes about eight months to one year to finalize.
The decedent's property is part of the probated estate and under the authority of the probate court. This can include real estate, tangible assets (like art, furniture, jewelry, art, and motor vehicles), or bank accounts with no designated beneficiary. The court will collect filing fees for document examination, plus fees for petitions, hearings and other court proceedings.
Necessity of Probate
Probate court proceedings aren't always necessary. State law does not require probate of property in certain circumstances:
- When the decedent owns assets in joint tenancy, the assets automatically go to surviving tenant.
- When the decedent names a beneficiary outside of the will as in payable-on-death (POD) bank accounts or retirements accounts with named beneficiaries.
- Pension or life insurance benefits with a named beneficiary.
- Assets in a living trust.
Any heir or beneficiary can ask the probate court to determine that no probate proceeding is necessary, if the decedent did not leave a will. This expedited process allows families to avoid completing complex forms and making several trips to probate court. Skipping probate in this instance can only occur if all heirs or beneficiaries agree on the distribution of the deceased person's assets and the decedent left no debts or creditors do not object.
Estate Executor and Administrator
The decedent usually names a person in their will that they know and trust as executor of their estate. That person will request probate by filing an application, with the death certificate and original will, to the local probate court in the county where the decedent lived. The application will contain the date of death, the beneficiaries named in the will and names of the living family members or loved ones. That person then requests an appointment as a personal representative (PR) of the estate. If the decedent did not leave a will, the court appoints an administrator, also called a PR – this individual generally does the same job an executor does and is often a surviving spouse.
The PR promises to act in the estate's best interest by taking an oath. The court then issues "Letters Testamentary" for the executor or "Letters of Administration" for the administrator, giving them the authority to:
- Inventory and collect the decedent's assets.
- Have them professionally appraised, if necessary.
- Sell them, if necessary.
- Pay the decedent's debts and taxes.
- Distribute the remaining property to beneficiaries.
Estate Organization and Record-keeping
The PR keeps detailed records of how they handle and distribute assets – at some point, the court may ask for bills, bank statements or receipts. The court may also ask for a detailed inventory of the decedent's assets with their estimated market value and a yearly accounting detailing the money the estate spent and received with an updated inventory.
The PR must also send these reports to the estate's heirs and beneficiaries unless they say they don't need them or the will states it isn't required. If the PR needs to sell some of the decedent's assets to pay their debts or because their value has declined, they may need court approval to do so, particularly if they are real property or business interests.
Distribution and Estate Closing
After the PR pays the decedent's taxes and debts, they can distribute the remaining assets to the heirs or beneficiaries. To do this, they must follow the will's instructions. However, if there is no will, Georgia law dictates who inherits assets through its intestacy laws:
- If there are no children, the decedent's spouse inherits the estate.
- If there is no spouse, but there are children, the children inherit the estate.
- If there are children and a spouse, they share the estate, but the spouse must get a minimum of one-third of it.
- If there are parents but no spouse or children, the decedent's parents inherit the estate.
- If there are siblings but no parents, spouse or children, the siblings inherit the estate.
Before distributing assets, the PR prepares an accounting that shows who inherits what property. After paying the decedent's debts and taxes and distributing the estate's assets, they then file a Petition for Discharge with the probate court to relieve themselves of their duty. If the court decides that the PR has successfully completed the job, they will grant the discharge and release the executor or administrator from liability.
Avoiding Probate Through a Living Trust
Probate is expensive and takes a long time so many people try to avoid it with careful estate planning. One way to do this is through a living trust. This allows an individual to create a trust document naming a successor trustee in the event of their death. The person making the trust document transfers ownership of the property to themselves as the trustee. As trustee, they retain control of the property. When the individual dies, their successor trustee transfers the property to the trust's beneficiaries outside any probate proceeding.
Avoiding Probate Through Joint Tenancy
When a person shares ownership of property with others through a type of joint ownership known as joint tenancy, the surviving person or persons typically take ownership automatically when a co-tenant dies. This is known as the right of survivorship. However, Georgia requires each owner or joint tenant to have an equal share of the property. Married couples or other people who acquire property together often find joint tenancy works well for their needs. Probate is not necessary in order to transfer the property, but paperwork must prove that the surviving owner holds the property's title.
If both parties own real estate together, they will likely have a survivorship deed. This document is used to transfer residential and commercial real estate from grantors to grantees, thus creating a joint tenancy. Some states also allow a transfer on death deed (also called a beneficiary deed), which doesn't take effect until one party dies, but Georgia does not allow its use in real estate transactions.
- NOLO: States That Allow Transfer-On-Death Deeds for Real Estate
- NOLO: Intestate Succession in Georgia
- Athens-Clark County Unified Government: Heirs at Law
- Nolo: Georgia Probate: An Overview
- Deeds.com: Georgia Probate and Real Property
- Trust And Will: What Is Probate & How to Avoid It
- ALL Law: Steps in the Probate Process: An Overview
- Siedentopf Law: What Happens If You Don’t File The Will For Probate?
- Find Law: Georgia Probate Laws
- Acquire a copy of the trust or will documents and the probate court documents for your records.
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.