As an Atlanta Estate and Probate Attorney, many of my clients come to me for counsel during the difficult time following a loved one’s death. Confusion over how the Georgia probate process works and conflicts of interest between heirs and/or beneficiaries can make this process painful and complicated. During the Georgia probate process, assets from the estate will be distributed and any disputes between heirs or beneficiaries regarding estate assets will be resolved. The process of probate varies by state. In Georgia, the law is somewhat straightforward, but still extremely complicated for most any non-lawyer.
For a better understanding of the probate process, it is important to clarify a few commonly used terms:
• Probate: the court proceedings that prove a Will to be the last valid Will of the decedent – it is also the process of administering the decedent’s estate
• Decedent: a person who has died
• Estate: all of the decedent’s property, including personal property and real estate
• Heirs: in the absence of a Will, those persons who have a just claim to the property in the estate of the decedent
• Beneficiary: a person who is identified in the Will to receive property from the decedent’s estate
• Will: a signed, legal document that states how the decedent wishes to distribute his property after death
• Testate: when a person dies and did write a Will
• Intestate: when the decedent did not write a Will, or when the Will is invalid
• Executor: the person named in the Will to administer the decedent’s estate
• Administrator With Will Annexed: the person assigned by the court to administer the decedent’s estate when a Will exists, but has not named an Executor, or in the case that the Executor named is unwilling or unable to serve this duty
• Administrator: when there is no Will, this is the person assigned by the court to administer the decedent’s estate
• Escheat: in the case that no heirs make claims to all or some part of the property in an estate, the state will receive the unclaimed property
Georgia probate proceedings usually are held in the Georgia county where the decedent permanently resided at the time of death. The county probate court will verify that the will presented in the proceedings is valid and that it is the last will that was written by the decedent. Once the will is verified, or in a case where there is no will, the probate court will oversee the distribution of the estate’s assets. When the decedent dies with a will, the estate will be administered in accordance with the decedent’s wishes that are expressed in the will. Should the decedent die without a will, Georgia’s Intestacy Statutes provide the scheme for distribution of estate assets. This usually means that the surviving spouse and children will receive the percentages of property first, followed by parents, siblings, and other family members.
The time that the probate process takes can run between seven or eight months for simple estates, to several years for more complex estates. During the process, the executor or administrator will identify the assets in the estate, perform an appraisal of those assets and pay any debts and taxes owed by the estate. Only after these steps are completed can the remaining property be distributed to the heirs and/or beneficiaries. Disputes between the parties involved over how these duties are performed will lengthen the process. The normal expenses incurred in probate, including the payment of debts and taxes, are paid out of the estate’s assets. Legal fees are also usually paid from estate assets.
The clarity with which a will is written will affect the duration and outcome of the process. Working with a qualified Georgia Estate lawyer to define exactly how your estate’s assets will be distributed is critical. If you are named as Executor or Administrator of an estate, a lawyer can explain your duties under Georgia Probate Law, help you fill out court forms and send the required probate notices. An attorney can also help you to meet all court deadlines. When issues between heirs and/or beneficiaries seem likely, or when they do come up, an experienced Probate litigation lawyer should be consulted so that delays in the proceedings, and additional costs, can be avoided.
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