There are a number of different proceedings which may be filed in the Probate Court following the death of a Georgia resident or a non-resident owning property in the State of Georgia. Proceedings are filed in the Probate Court of the county of the deceased person's residence in Georgia or in the county where property of a non-resident is located.
This page briefly describes the usual, initial proceedings. For each proceeding described, there is a standard form, which the Court will provide to any petitioner.
It is suggested that you discuss the matters of concern with an attorney who practices probate or estate law. The attorney can assist you in determining which proceeding is the most appropriate for your particular situation. Very often, there are other matters (e.g., tax returns, preparation of deeds, title transfers, etc.) which may also make it appropriate or necessary to seek the services of an attorney.
If you proceed without an attorney, it will be your responsibility to determine or select the proceeding appropriate to your situation. The staff of the Probate Court may not make the determination or selection for you, since to do so may constitute the unauthorized practice of law. Neither the Court nor the County can accept responsibility for incorrect decisions made by the staff, and they have been directed to refrain from giving that kind of advice.
It is also your responsibility to properly complete all forms, which must either be typed or legibly printed in black ink. The staff are not permitted to perform clerical tasks for the public. The staff will be able to answer any basic questions about the standard forms and about any deadlines for the filing of proceedings. They will also be able to schedule uncontested hearings and tell you how other matters are scheduled by the Court.
The Probate Judge is required by law to remain impartial to all parties. The Judge must treat every case as though it may become contested. Therefore, the Judge also may not advise you on which proceeding is most appropriate to your case. The Judge is prohibited from discussing the facts or evidence in any contested case with a party unless all parties are present. You should not ask to discuss your case privately with the Judge, and you should understand if the Judge stops any discussion which appears to require the presence of others.
SOLEMN FORM PROBATE
This procedure requires notice to all heirs-at-law and becomes binding upon all parties immediately upon appointment of the Executor. "Heirs-at-Law" are the persons who would inherit the estate if there were no lawful Will; heirs-at-law may or may not be beneficiaries under the Will. The notice requires anyone having a legal cause to object to or contest the alleged Will to file the objection or contest before a certain deadline. The original Will must be attached to the petition, and proof of the execution of the will must be provided by either a Self-Proving Affidavit, Interrogatories, or Testimony of Witness. All heirs must be duly served or must acknowledge service. The Court will appoint a guardian-ad-litem for each minor or incapacitated heir.
COMMON FORM PROBATE
This procedure may be done without notice to heirs but does not become binding for four years after the appointment of the Executor or four years after a minor heir reaches the age of majority as to that heir. The requirements of providing the original Will and proof of proper execution are the same as with the Solemn Form Probate. Heirs or other interested parties may file an objection or contest at any time up to four years after common form probate.
PROBATE OF WILL IN SOLEMN FORM/LETTERS OF ADMINISTRATION WITH WILL ANNEXED
If there is a Will but the named Executor(s) is (are) either unable or unwilling to serve, an Administrator with Will annexed must be appointed, also termed an Administrator cum testamento annexo. If any Executor is still living, the Executor(s) must sign a declination or renunciation of his or her right to serve or there must be testimony that the Executor is unable to serve before an Administrator with the Will Annexed can be appointed, unless a named Executor has qualified and then died or became incapacitated while in office. The formal legal term for this type of Administrator with Will Annexed is an Administrator de bonis non. A majority of the beneficiaries may select the Administrator. The Court will appoint a guardian-ad-litem for each minor or incapacitated heir.
WILL FILED, NOT FOR PROBATE
If there is no property to pass under the Will and Letters Testamentary are not required to obtain or take control of assets, probate is not necessary. However, the Will of the deceased must be filed with the Probate Court. Real estate, unlike joint bank accounts, may not automatically pass to a surviving co-owner. If the only property in the estate is an automobile, title may be transferable through the Tag Office without probate being necessary.
This procedure requires notice to all heirs. A surviving spouse or sole heir is entitled to serve as Administrator; otherwise, the administrator may be selected by a majority of the heirs, subject to the approval of the Court, which decides whom to appoint, in the absence of a surviving spouse or sole heir, according to the best interests of the estate. Administrators must post bond and file inventories and returns, unless ALL heirs-at-law consent to a waiver of those requirements. If ALL heirs consent, the Administrator may be given additional powers and authority. Natural guardians of minor heirs, legal guardians of minors or incapacitated adult heirs, and guardians-ad-litem, may acknowledge service, consent to selection and consent to waive requirements, unless the guardian is the petitioner or other person seeking to be appointed.
NO ADMINISTRATION NECESSARY
If all debts of the deceased have been paid (or if all creditors consent) and there is no other need for formal administration, and the heirs have all agreed on how the estate will be divided, this proceeding may be filed. All heirs, or guardians acting on their behalf, must sign an agreement disposing of the estate. All creditors, if any, must consent (or not object) to the entry of the Order Declaring No Administration Necessary.
Notice to all heirs-at-law is not required, but all heirs at law must be named on the petition. A majority of the heirs may select the Temporary Administrator, subject to approval by the court according to the best interest of the estate. A person named as Executor in the unprobated will of the deceased is to be given preference in the Court's appointment. Powers are limited to collecting and preserving the assets of the deceased. No expenditures or disbursements may be made without a special court order. Temporary Administrators must post bond and file inventories and returns. When selection is required, natural guardians of minor heirs and legal guardians of incapacitated adult heirs may consent to selection unless the guardian is the petitioner or other person seeking to be appointed.
WHETHER OR NOT THERE IS A WILL
TWELVE MONTHS' SUPPORT
This proceeding may be filed only by a surviving spouse or for minor children of the decedent. Minor children must be given a share of a twelve months' support award. The petition asks that specified property be awarded to the spouse and/or children. Notice must be given to all " interested persons." Property awarded as year's support is free of all unsecured debts of the estate and takes precedence over any disposition by Will.
PETITION TO ENTER SAFE DEPOSIT BOX
This proceeding is usually used when the Will is thought to be in a safe deposit box. It permits the bank to open and examine the contents of the box in the presence of the petitioner. If a Will is found, the bank must deliver it directly to the Probate Court. Insurance policies may be delivered directly to the named beneficiaries. The petitioner may receive only burial instructions and any deed to a burial plot. Other property must remain in the box until an Executor or Administrator is appointed.
If the deceased person had no will and the only asset is money deposited in a bank or other financial institution, and the amount is less than $10,000, an heir-at-law may be able to claim those assets by completing an affidavit for financial institution without petitioning for Letters of Administration.
Marietta estate planning, divorce and family law attorney and family estate planning lawyer Stephen M. Worrall is an experienced, professional, compassionate and strong advocate. He concentrates his practice in all areas of estate planning, including wills, trusts, guardians for minor children and incapacitated adults, probate and trust administration, and family law, including divorce (litigated and collaborative), adoption, prenuptial agreements, domestication of foreign decrees, child custody, child support, property division, alimony, modification, paternity, legitimation, contempt, enforcement of judgments, domestic violence, grandparent’s visitation, and name changes. He practices primarily in the Probate and Superior Courts in the metropolitan Atlanta area, including Cobb County, Fulton County, Bartow County, Paulding County, Cherokee County, DeKalb County and Gwinnett County, among others throughout Georgia.