Last Will and Probate Process in Georgia

By Beverly Bird

The process of moving a will through the probate process and settling an estate can take months or longer if there are any complications. However, Georgia offers a streamlined option of probate that your executor can elect if you held minimal assets and your estate is not complicated.

The process of moving a will through the probate process and settling an estate can take months or longer if there are any complications. However, Georgia offers a streamlined option of probate that your executor can elect if you held minimal assets and your estate is not complicated.

Validation of Will

The first responsibility of an executor (the person chosen in the will to oversee its terms) is to make the state of Georgia aware of your will. She must present it to the probate court, generally in the county where the decedent lived, so the court can determine that it is authentic and valid. Georgia accepts wills made in other states as long as they conform to Georgia law. However, the American Bar Association warns that some provisions of a will can have a different meaning in Georgia than in other states. If you move to Georgia with an existing will, you should have it reviewed by a Georgia attorney.

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Appointment of Executor

Next, the executor must take an oath of office to formally accept the position. The court then gives her documents--usually called “letters testamentary” or “letters of administration”--that authorize her to make decisions and take actions on behalf of the estate.

Choice of Probate

After the executor is sworn in, he must decide how the estate is going to be probated. The streamlined version available for uncomplicated estates is “common form probate” and does not involve any court appearances. However, it does allow heirs to contest the will for up to four years after it has entered probate. Another choice is “solemn form probate,” which does require court appearances, but heirs can only contest the will and the deceased’s creditors can only make claims against the estate for specified periods of time. The executor also has the option of skipping the probate process if the estate owns no property. This might happen when life insurance proceeds go directly to a beneficiary named in the policy or when real estate is jointly owned with "rights of survivorship," meaning it passes directly to the co-owner, usually the spouse. However, the will must still filed with probate court even if an application for probate is not.

Settling the Estate

Once the estate has entered probate, the executor begins addressing the details of settling it. This usually includes locating and itemizing assets and having them appraised or sold to cover expenses of the estate, such as your funeral expenses, probate fees and court costs, attorney fees or costs of placing any newspaper notices. Next the executor will pay off the decedent’s debts and any taxes that are owed. Finally, he distributes bequests and remaining assets to the beneficiaries.

Family Changes

In some cases, the law can supersede your will, which typically would happen if you wrote your will before you got married, divorced or had a child. The law will not allow you to disinherit your wife--either intentionally or by oversight. If you marry but do not update your will to include her, she would still receive an "elective share" of your estate. An elective share is a percentage that she can elect to receive instead of what was left to her--or not left to her--in your will, equal to whatever she would have received as your most immediate heir if you had not left a will at all. Children born after you made your will but not added to it also receive a share proportionate to that of your other children. If you divorce, provisions made for your ex-spouse are generally revoked by the state unless your will expressly states otherwise.

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Does a Divorce Exclude a Spouse From Inheriting Under a Will in Georgia?

References

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What's the Statute of Limitations for Contesting a Will in Georgia?

Georgia does not limit will challenges to beneficiaries and heirs. Those who are financially harmed by the will or who might potentially benefit from it can contest it as long as they have legal grounds, such as proof that the testator was not mentally competent, that some procedural deficiency occurred in the making of it, or it is a forgery or fraud. Two statutes of limitation exist.

What Does Probate for a Will Mean?

Probate is the process of transferring legal title to property from a person who has died to that person's heirs or beneficiaries. The probate process is supervised by a court and can include paying any taxes or debts that are owing, gathering and accounting for assets, determining the validity of a will, settling disputes over who is to inherit and distributing assets. The legal term for the probate process is testate proceedings.

What Happens When a Will Goes to Probate?

If you have assets at the time of your death, they must still pass through the probate process so your outstanding bills are paid and the remaining assets go to your statutory heirs -- persons whom by the law in your particular state are deemed to have the right to inherit from you. If you leave a will, the process is overseen by your chosen executor.

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