Probate and Estate Administration
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.
What to do when a loved one Passes
Locate Any Wills, Trusts, or Other Legal Documents
As soon as practicable after the decedent’s death, the family should try to find the decedent’s will or trust, if any. If you have trouble, you may consult with a qualified attorney for assistance in finding such documents. An attorney may provide insight and assistance about where to find these documents. Many people keep these documents in a safe deposit box at their bank while others may store these documents in a safe or desk drawer at their home. If a will or trust agreement exists, it is likely that the attorney who prepared the document will have a copy at his or her office.
Once you have collected these documents, organize them and store them together. Putting them together in an envelope, or better yet, using a 3-ring binder will prove useful and help you in the future if any questions come up. It will also make it easier for your family members, when the time comes, to handle your affairs.
Assets titled in the name of husband and wife pass automatically to the surviving spouse. This is usually the case with a house that was purchased during the marriage. Probate is not required; however, if one dies unmarried the way title to a home is transferred depends on if the deceased had a will or not.
Personal Items And Cash
No items should be moved, sold, given away or otherwise disposed of if they have been identified in the person’s Will as items to be distributed as a part of the estate. Only the legal beneficiary of those items is entitled to make those decisions.
If no other assets need to be probated, your local Tax Commission office can transfer title to the deceased person’s motor vehicles. You must provide a certified copy of the death certificate, the vehicle titles, current or last registration, a valid driver’s license, and fill out a T-20 affidavit of inheritance from.
Life Insurance Policy
If there was a life insurance policy, you should contact the insurance company and provide them with a copy of the death certificate. The insurance company can then pay the proceeds from the policy to the named beneficiary. This is the person that the deceased chose to receive the money. This process does not require probate unless all of the named beneficiaries has already died.
If there are bank accounts on which someone is a “surviving owner”, (the account may read “POD” for Payable upon Death or joint owners with “ROS”, for Right Of Survivorship) a death certificate needs to be provided to the bank so that the surviving owner can now take ownership. Also, if a deceased person dies without a will, heirs-at-law may be able to claim the assets in a bank account by completing an affidavit for financial institutions Otherwise, access to the accounts may be blocked until someone is appointed as an official agent on behalf of the estate.
Social Security Death Benefit
A Social Security death benefit of $255 is payable to the surviving spouse, or if none, to children receiving benefits from the deceased’s account. In order for the death benefit to be payable, the deceased person must have been receiving Social Security benefits or have been eligible to receive them.
Social Security benefits for a month are paid at the beginning of the next month. No benefit is payable for the month of death. A recipient must live through an entire month to be eligible for the benefit.
Veteran’s benefits are very similar to Social Security benefits. If the deceased was receiving Veteran’s benefits, you should contact the Veteran’s Administration and notify them of the death.
Avoiding Major Decisions
During this time, you might not be thinking as clearly as you will be a few months or a year later. You may be in mourning and this may not be the time to make decisions regarding important financial or legal transactions such as:
· Transfer of property to others or giving away things like cars, furniture, jewelry, art and other valuables;
· Make a major purchase, especially an unsolicited one;
· Sell your home or move; and
· Add the names of other people on your property and other assets.
Consider delaying all major decisions regarding your assets for at least 60-90 days and consult trusted advisors. It may seem like a good idea to add someone’s name to the deed of the house or to the bank account, but you should be sure to know all of the possible implications.