Probate means the verifying the Will of a decedent by a court of law.  When a person who has made a Will dies, the Will must be presented to the probate court and proved to be valid. Estate administration refers to the process of administering an estate of a deceased person. If there is a will, the Executor handles the administration.  If there is no will, an administrator needs to be appointed.  Once administration begins, both an executor and administrator are referred to under Georgia law as a personal representative.  If a person passes away without a will, Georgia law will determine who will receive what portion of the estate, otherwise the will controls. At the Success firm, we will guide you and your family through this difficult time by navigating you through these legal processes.

• The petition for order declaring No Administration Necessary is used to skip the probate process entirely. It is used for very small estates and when all of the parties involved agree to a written distribution plan.

• The petition for Letters of Administration is used when someone dies “intestate,” or without a will.   An administrator is appointed to pay the debts and disburse the decedent’s property to his or hers heirs at law.

• Will Probate in Common form is used when (1) there is an immediate need for the appointment of a personal representative (e.g., a house in an estate will be foreclosed unless someone with authority to act on behalf of the estate intervenes) or (2) there are problems anticipated with providing notice to all of the heirs-at-law of the decedent.  While it is easy to open an estate using common form probate, the Will and the appointment of the executor remain open to challenge much longer.  To eliminate the possibility of such a challenge in the future, most people prefer to use solemn form, and we recommend solemn for be used whenever possible.
• Will Probate in Solemn form is used when the petitioner has the time to complete the petition process and desires finality with regard to the validity of the Will.  Solemn form probate requires that all heirs-at-law of the decedent be notified of the petition, receive a copy of the petition and Will, and have an opportunity to object to the Will or to the appointment of the executor.  In most cases, the heirs-at-law are few and can be contacted easily, and usually, they will consent to the probate of the Will.  In such cases, the petitioner can obtain their written consents and be appointed executor upon filing the petition with the court.
• Will Contests: Now and then, a Will is not what it purports to be. Perhaps the testator didn’t have the capacity to make the Will, or someone influenced her to make a Will that she didn’t want to make.  Sometimes, a Will simply wasn’t executed properly.  When the validity of a Will is challenged, it is crucial to determine all facts about its creation.
• Year’s Support: Whether or not a Will exists, Georgia law clearly provides that a deceased’s spouse and minor children are entitled to make a claim for Year’s Support (though the vast majority of these claims are made by spouses), which has priority over all other claims to an estate. However, what amount from an estate constitutes a Year’s Support is not clear at all and often becomes a point of dispute.

What is probate? If there is a Will, then the Executor files a petition along with the original Will in the Probate Court in the county where the decedent lived. The Executor is sworn to follow the fiduciary duties required of an Executor and begins the process of paying bills and transferring property to the beneficiaries of the Will. If there is no Will, an Administrator is sworn in and must follow the laws of the state of Georgia when distributing the property.

Should I avoid probate? You might have already taken steps to avoid the probate process and not even know it. If you hold property, such as your home, as joint tenants with right of survivorship, then the property will be distributed to the co-owner and will not pass through probate.  If you have designated someone as the beneficiary of your life insurance and retirement assets (which is not always advisable), then the benefits will be distributed to the designated beneficiary and not pursuant to your will, thus passing outside of probate.

How long does it take to probate an estate? With a simple will that has followed all of the required procedures and formalities, some estates can be closed in as little as six months after opening. The time an estate is open depends upon certain factors including whether the estate is subject to estate tax, the type of property owned and the beneficiaries designated.

Is probate expensive? In Georgia, filing fees for probate are approximately $250.  Most attorneys and CPA’s charge their normal hourly rate to assist in the probate process, unlike other states where a normal fee is based on a percentage of the probate estate.