Does a will have to be probated in Georgia?


Posted on January 18, 2024

Probate is a legal process where a deceased individual’s estate is administered and distributed. The process includes identifying the decedent’s assets and liabilities, paying any debts or taxes owed, and distributing the remaining assets to the rightful beneficiaries. Georgia has its own probate laws that govern the process, which may differ from other states.

Having a valid will is just one step in understanding the probate process in Georgia. To ensure that your will is distributed according to your wishes and to ensure that your assets go to your intended beneficiaries, it is important to have a good grasp of how probate administration works. Navigating the legal processes involved can be tricky. 

Our experienced Atlanta probate attorney at Trace Brooks Law can assist you in starting your estate planning journey and even assist in avoiding the probate process in Georgia. Founded by Atlanta estate planning attorney Trace Brooks, we are dedicated to helping our clients meet their estate planning goals and help them secure their legacy for their chosen beneficiaries.

Probating a Will in Georgia

The process of probate is a fundamental step for executing the will of someone who has passed away, ensuring their estate is distributed as intended. For those in Georgia, executors and beneficiaries need to understand the nuances of the probate system. 

Is Probate Always Required in Georgia?

Probate is not an obligatory procedure for every will in Georgia. The requirement hinges on the type of assets in question. If the decedent’s assets were in their name alone, probate is vital for the lawful reassignment of ownership. Conversely, with assets like jointly held property, accounts with designated beneficiaries, or trust-held assets, probate might be unnecessary. Nonetheless, submitting the will to a probate court is compulsory, even if formal probate is bypassed.

What Happens If a Will is Not Probated?

Overlooking the probate of a will can cause significant issues. Without probate, there can be interruptions or barriers in transferring assets to beneficiaries, potentially resulting in the default distribution under state intestacy laws, not the decedent’s wishes. Additionally, neglecting to settle debts and taxes can create financial liabilities for the estate. Timely submission of the will to the probate court after death is, therefore, crucial.

Who Can File for Probate in Georgia?

In Georgia, probate can be initiated by any interested party, usually the executor designated in the will. If the appointed executor is unable or unwilling to act, they may opt out, prompting the court to appoint an alternate personal representative. This person is charged with estate management tasks, including filing the will, beginning the probate proceedings, and asset distribution.

To initiate the probate process in Georgia, the following documents are generally required:

  • The Original Will: The will must be filed with the probate court in the county where the deceased resided.
  • Petition for Probate: The executor or an interested party must complete and file a petition to open the probate process.
  • Death Certificate: A certified copy of the death certificate is needed to prove the death of the testator.
  • List of Heirs and Beneficiaries: This includes names and addresses of all individuals who have an interest in the estate.
  • Inventory of Assets: A detailed list of all assets that make up the estate must be compiled.
  • Notice to Creditors: Filing a notice in a local newspaper is required to alert potential creditors of the probate process.

The probate process in Georgia generally takes about a year and involves several steps from filing the will and petition to the final distribution of assets. Executors should consider seeking legal advice to ensure they fulfill their duties effectively and in accordance with the law.

Required Documents Description
The Original Will The will of the deceased must be filed with the probate court in the county where they resided.
Petition for Probate The executor or an interested party must complete and file a petition with the probate court to initiate the probate process.
Death Certificate A certified copy of the death certificate is necessary to prove the death of the testator (deceased person).
List of Heirs and Beneficiaries This document includes the names and addresses of all individuals who have an interest in the estate.
Inventory of Assets A comprehensive list of all assets comprising the estate must be compiled and provided to the probate court.
Notice to Creditors Filing a notice in a local newspaper is required to inform potential creditors about the probate process.

Probate versus Non-Probate Assets

Probate and non-probate assets are two types of assets that play an important role in estate planning. Understanding the difference between them is crucial for creating a comprehensive estate plan that protects your investments and ensures your wishes are carried out after your death. 

What are Probate Assets?

Probate assets are those that must go through the probate process after a person passes away. The probate process is a legal procedure that involves the distribution of the deceased person’s assets according to their will, or in the absence of a will, according to state law. Probate assets can include real property, personal property, bank accounts, and investments that are solely in the deceased person’s name without a designated beneficiary.

If there is no executor to administer probate, the court will appoint an administrator, usually a relative or close friend, to act as the deceased’s personal representative and manage and distribute the deceased person’s assets. The personal representative must locate and appraise assets, pay outstanding debts, and distribute the remaining assets to the rightful heirs or beneficiaries. This process can be lengthy and costly, often involving legal fees, court fees, and other expenses.

Some common examples of probate assets are:

  • Real estate properties solely in the deceased person’s name
  • Personal property, such as vehicles, clothing, and household items
  • Bank accounts solely in the deceased person’s name
  • Stocks and mutual funds solely in the deceased person’s name
  • Business interests or ownership in a partnership or corporation

What are Non-Probate Assets?

Non-probate assets are those that can be transferred to beneficiaries without going through the probate process. This means that upon the death of the owner, these assets will be distributed directly to the designated beneficiaries without the need for court intervention. Non-probate assets can include joint ownership of property, retirement accounts, life insurance policies, and certain types of trusts.

Some common examples of non-probate assets are:

  • Real estate property owned jointly with the right of survivorship
  • Joint bank accounts with the right of survivorship
  • Life insurance policies with a designated beneficiary
  • Retirement accounts, such as 401Ks and IRAs, with a designated beneficiary
  • Payable-on-death bank accounts
  • Revocable living trusts

By transferring assets through non-probate methods, you can help your loved ones avoid the lengthy, expensive, and often stressful probate process, ensuring that they receive their inheritance more quickly and with fewer complications.

Probate litigation can be a complex and challenging process. Navigating the legal system, dealing with emotional strain, and managing the competing interests of family members and other parties can be overwhelming. To ensure a fair outcome and protect your interests, it is crucial to consult with an attorney experienced in probate litigation.

A knowledgeable probate attorney can help you assess the merits of your case, guide you through the contestation process, and develop a strategy for achieving the best possible outcome. They will also be able to represent you during negotiations, mediation, and in court, ensuring your rights are protected and your voice is heard.

Contesting a will in Georgia requires proper legal grounds, adherence to the filing and notification process, and thorough preparation for potential mediation or trial. Retaining experienced legal representation is critical to navigating the complexities of probate litigation and achieving a fair resolution.

Consulting with An Experienced Atlanta Probate Attorney

An effective estate plan requires regular review and updates to ensure it remains current and accurately reflects your wishes. Changes in family situations (marriage, divorce, birth or adoption of children, death of beneficiaries), financial circumstances, and tax laws can impact the effectiveness of your estate plan.

Getting the help of an experienced estate planning attorney, regularly reviewing your current plan, discussing any changes that may affect your plan, and updating your documents can help ensure a smooth and efficient distribution of assets in the event of your death. Annual reviews and updates are recommended to avoid potential complications and disputes during the probate process.

At Trace Brooks Law, we provide experienced legal assistance in matters of estate planning and probate administration in Georgia. Our skilled Atlanta probate attorney can conduct a comprehensive evaluation of your financial profile, help you understand your available options, and assist you in making an informed decision that is aligned with your estate planning goals. Contact us today at (404) 492-9559 to schedule a consultation and learn more about how we can help you.

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