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Probate in Georgia – Is probate required and how do I start?

Probate in Georgia - Is Probate Required and Where do I start?

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Yes, generally speaking, probate is required in Georgia. The starting point is to locate the will of the deceased; make a copy of the will; and file the will with the probate court having jurisdiction over the estate. A petition to probate is then drafted and filed with the court. In Georgia, if the will does not include a self-proving affidavit, the original witnesses to the will likely will be needed to prove the will. Additional related issues may also arise for consideration - for example, whether a guardian ad litem may be necessary; whether the will may have construction problems as a result of the way it was drafted; or whether the will may be contested and on which grounds. John Farrell, at The Farrell Law Firm, P.C., in Marietta, Georgia, routinely advises clients through the probate and other estate administration processes. If you would like to discuss particular circumstances of your probate or estate administration needs with John Farrell of The Farrell Law Firm, P.C., please call today at (678) 809-4922 for your in-person free consultation.

1. Purpose of Probate

When an individual passes with a Will in place, that person is the "testator." Since a Will conveys property from the testator to the testator's next of kin, it must be proved - or "probated" - after the testator's death and before it can operate as a legal conveyance. Thus, probating a will is necessary so that the Will can be recognized as an instrument passing title to property. The purpose of probate is to establish the will as the identical instrument intended by the testator to be the testator's will. If the Will is not proven before the probate court, the law will not recognize it as a Will or its operation as a legal conveyance.

2. Where to Begin

Presuming a search has been made for the will; the family has confirmed that the will in hand is the original last will and testament of the decedent; and that there is not the possibility of a codicil, it is helpful to consider first the deceased's assets and liabilities. Assets include such things as Checking accounts; Savings accounts; Certificates of Deposit; Credit Union Accounts; Uncashed Checks; Notes held by decedent; Debts due decedent; Cash and valuables on decedent at death; Real Estate, including the testator's residential property and other real property owned at the time of his or her death; cemetery lots; remainder interest in estate(s); contracts to buy or sell by the testator; leases; limited partnership interests in real estate; stocks and bonds; personal property; mutual funds; government savings bonds; personal property; employment benefits; life insurance or other relevant insurance policies.

The testator's debts should also be identified, which may include: charge accounts; house mortgage; notes; other mortgages on other real property; utilities; funeral bills' taxes; past due alimony; child support; debts due as a fiduciary; hospital; doctor; grave marker; pledges to charity; leases or rent; judgments against the testator; and sales contracts.

3. A Will Must Be Filed

Under Georgia law, any person in possession of the testator's will has a duty to file the will with the probate court having jurisdiction. Jurisdiction lies with the probate court for the county where the testator lived at the time of his or her death.

If the testator is not "domiciled" in Georgia at death, the Will may be probated in the probate court of any Georgia county in which any of the property owned by the testator is located, or in the Georgia venue in which any cause of action possessed by the testator may lie.

In proceeding to probate the will in solemn form, the only issue is whether the paper submitted as the will is, in fact, the last will and testament of the deceased. Thus, the probate court's focus is on its consideration of 3 questions:

  • Was the document properly executed;
  • Did the testator have mental capacity to execute the document; and
  • Was there undue influence, fraud, or mistake in the execution of the document.

Solemn form probate is immediately conclusive on all heirs properly notified; as well as upon those individuals who are devised property from the estate or may have claim or an alleged right to property of the estate.

The Petition to Probate Will in Solemn Form must be verified by the oath of the applicant. Among the various sets of information that the form requires, it must include the name, domicile, and the date of death of the testator. It must also contain the mailing address of the applicant, and the names, ages, or majority status, addresses, and relationships to the testator of the heirs at law. Whether, and whom, to serve with the filing depends on various factors, including whether an heir acknowledges service; whether an heir can acknowledge service (i.e., unable to acknowledge because of age or mental disability and must be served personally); whether the heir resides outside of the state of Georgia and/or whether their location is known; and whether service can be made by U.S. mail, based on the circumstances of the particular estate in probate.

4. Georgia Law Recognizes A Self-Proving Affidavit

It is also important to determine whether the Will has a Self-Proving Affidavit. Georgia law provides for the admittance of a self-proved Will to probate, which means that it may be admitted without the testimony of any subscribing witness. Georgia law began permitting Self-Proving Affidavits in 1984, and, therefore, wills that pre-dated this enactment would not have such an affidavit. Oftentimes, even those wills prepared after 1984 do not have such self-proving features, and, therefore, proving the will is still required. If you have questions about self-proving affidavits and their use in Georgia to self-prove a Will in a Georgia Probate Court, contact Attorney John Farrell, at The Farrell Law Firm, P.C., at (678) 809-4922 who will review this question more specifically with you and your family.

5. Proving the Will By Other Means

If the will is not self-proving, the will must be proven to the probate court through alternate means, which is often by locating the actual witnesses to the original last will and testament. In Georgia, if no written objection (or, a caveat) is filed with the probate court to the application for probate in solemn form, only one witness is required to prove the will. Another method to prove to the will is through witness testimony taken by interrogatories when all of the heirs of the testator suffer under no age or mental disabilities; acknowledge service; and assent to immediately probate.

If the witnesses to the will cannot be located or are otherwise unable or unwilling to testify regarding the testator's signature at the time the will is offered for probate (i.e., due to death, mental or physical capacity), the probate court may admit the will to probate upon the testimony in person, by affidavit, or by deposition, of at least two credible disinterested witnesses that the signature of the will is that of the testator. The court will consider an affidavit from someone who knew the decedent and was familiar with his signature, to which that individual would swear by a notarized affidavit that the signature on the will was that of the decedent. If you have questions about proving a will in Georgia, contact Attorney John Farrell, at The Farrell Law Firm, P.C., at (678) 809-4922 who will review this question more specifically with you and your family.

6. After Qualification of the Personal Representative

After qualification, every executor must take an oath or affirmation. If there are out of state assets (for example, a beach house or lake house), consider whether ancillary probate (if testate) or ancillary administration (if intestate) is required. Generally speaking, if there is real property owned by the decedent in another state, that property will need to be probated in the county in which that out-of-state property is located. This is called "ancillary probate". John Farrell, at The Farrell Law Firm, P.C., routinely advises clients on ancillary probate questions and proceedings and can be available to you and your family to answer those questions as you navigate the probate process.

A Notice to Debtors and Creditors should also be published in the county's legal organ. In Georgia, the property of the testator cannot be distributed to the heirs or the beneficiaries under a will until all expenses and debts of the testator have been satisfied.

The main time limits that generally begin to accrue after qualification of a personal representative under Georgia law includes the following:

  • Within 6 months, an inventory must be filed on behalf of the estate;
  • Within 60 days, Notice to debtors and creditors must be published;
  • Within 60 days of anniversary date of qualification, annual returns must be filed;
  • Within 6 months of qualification, payment of debts;
  • Within 30 days of sale of property, return following sale.

7. Hiring Legal Counsel for Probate Matter

If you have questions or would like to discuss the specifics of a particular probate or estate administration issue under Georgia law, please call John Farrell, at The Farrell Law Firm, P.C., at (678) 809-4922 to set up a consultation, at no charge. John Farrell's probate and estate administration practice is located off the Marietta Square, in Cobb County, Georgia, in close proximity to the Cobb County Probate Court. John's practice is committed to representing families before the Probate Court in Cobb County, as well as before the Probate Courts in Paulding, Cherokee, Gwinnett, and Fulton Counties. In addition to preparing and filing Petitions to Probate, John Farrell routinely counsels families in their review and organization of the deceased's personal and business assets and liabilities; the collection and preservation of assets; drafting and filing the necessary documents with the Probate Court to ensure that all estate-related issues are handled to completion; identifying when ancillary probate issues may need to be considered; and he continues to work with the family in the asset distribution to beneficiaries and heirs while also ensuring that the estate maintains compliance with the statutory and other probate related deadlines relevant to the specific matter.

Disclaimer: Probate is a legal process before a Probate Court, a court of record. As such, the processes and procedures of Probate depend on many factors, including but not limited to: whether the decedent died testate or intestate; whether the will is self-proven or must be proven before the Probate Court; specific details with respect to heirs-at-law and other beneficiaries; as well as whether there is an objection to the Petition to Probate or other issues that must be addressed. Thus, the information summarized above is only provided as an overview for general reference purposes. It is not intended to replace legal consultation and/or advice from legal counsel. The reference or use of this information does not create an attorney-client relationship with The Farrell Law Firm, P.C., either express or implied. An attorney-client relationship is only established with The Farrell Law Firm, P.C. upon the acceptance by The Farrell Law Firm, P.C. of a properly executed retainer agreement.

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John P. Farrell, Esq.

Mr. Farrell is the author of Estate Planning for the Modern Family: A Georgian's Guide to Wills, Trusts, and Powers of Attorney. You can learn about his book here and learn more about John here. Join the more than 1,300 people who subscribe to his Newsletter here. Feel free to send John a message here.

At the Farrell Law Firm, PC, we represent Georgia residents in Marietta, Kennesaw, Acworth, Atlanta, Smyrna, Vinings, Mableton, Austell, Powder Springs, Clarkdale, Ball Ground, Canton, Holly Springs, Lebanon, Cartersville, Calhoun, Waleska, Woodstock, Alpharetta, Fairburn, Palmetto, Red Oak, Roswell, Dallas, Hiram, Dunwoody, Lawrenceville, Norcross, Cumming, Cobb County, Cherokee County, Bartow County, Fulton County, Douglas County, Gwinnett County, and Paulding County.