What You Need to Know About Probate in Georgia

Probate in Georgia

Probate is a complex process. Even though it’s been simplified in the state of Georgia, there is still a lot you’ll want to know before it’s time to navigate it for yourself. We recommend you look into working with a Georgia probate attorney if you’d like professional insights to guide you through the process, or want to simplify as much as your estate planning as much as possible for your beneficiaries. 

What Does the Probate Process Do?

Without a living trust in place, Georgia law generally requires probate after someone dies. No one has the legal authority to do anything with your estate until the probate court appoints a personal representative to handle the administration of your estate. 

Every probate estate is unique, but most involve the following steps:

  • Filing of a petition with the proper probate court
  • Notice to heirs under the Will or to statutory heirs (if no Will exists)
  • Petition to appoint Executor (in the case of a Will) or Administrator for the estate
  • Inventory and appraisal of estate assets by Executor/Administrator
  • Payment of estate debt to rightful creditors
  • Sale of estate assets
  • Final distribution of assets to heirs
  • Payment of estate taxes, if applicable

probate process in Georgia

How is the Probate Process Different With and Without a Will?

Without a Will:
When someone dies intestate (without a will), wrapping up their estate is referred to as an administration. The process begins with preparing and filing a petition for letters of administration; the court order appointing a personal representative for the estate. It’s the beginning of a lengthy and sometimes costly process.

State law dictates the distribution of your assets (how much and to whom), and a probate judge oversees the process. This is what we call a state-sponsored estate plan, and requires that your spouse share the estate with your children or grandchildren if you have any. This is called the rules of descent and distribution and generally differs from how our clients describe the way they want their estates handled when we ask them about it. Not having a plan means that the government steps in and provides one for you.

With a Will:

People receiving property under a will are called beneficiaries. Under Georgia law, the petitioner must notify all heirs (based on rules of descent) of filing a petition to probate a will, even those intentionally excluded from the will. We have had situations where the notice to heirs who were non-beneficiaries caused conflict. So it’s essential to understand that will be a requirement upon your death and plan accordingly if you suspect there will be issues in your family.

What does the Timeline Look Like for Probate in Georgia?

It’s tough to accurately estimate the timeframe because it heavily depends on how efficiently the court handles your case and their overall caseload.  At a minimum, in an intestate estate, it will take anywhere from 45 – 60 days to have an executor appointed and approximately 12 months until the estate is ready to be closed out.  It should be a little bit shorter when a decedent leaves a will than for an estate without a will, but we have had occasions where it has taken 18 – 24 months to settle an estate due to time delays at the court.

How to Keep Your Estate Information Private and Avoid Probate

All of the information related to your estate is a public record, open to anyone who has a computer to research it or wants to go down to the courthouse and look at the records in person.

Probate assets have to go through the probate process. Non-probate assets don’t have to go through the probate process because they have beneficiary designations, custodial arrangements, or a legal status which means they transfer to beneficiaries without probate. Non-probate assets include IRAs, 401(k)s, life insurance policies, annuities, real estate held as joint tenants, joint bank or brokerage accounts, and pay on death accounts.

By working with an estate planning professional to ensure that you have up-to-date beneficiary designations and setting up your accounts and real estate as joint tenants with rights of survivorship, you can avoid probate for those assets. They can also work with you to avoid potential pitfalls to probate avoidance. Setting up a living trust will also avoid the hassles and public nature of a probate proceeding when you become incapacitated or die.

Ready to work with a trusted Georgia estate planning attorney? Contact the team at Smith Barid today.

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