Probate
Augusta Probate Lawyer
Probate for Augusta , Georgia residents is the legal process through which a deceased person’s estate is administered and distributed. In Georgia, the probate process is governed by the state’s laws and is designed to ensure that the decedent’s debts are paid and assets are distributed according to their wishes, or under Georgia’s intestacy laws if no will is present. In this article, we will walk through the probate process in Georgia, examining the steps involved, what happens when there is a will or when there is not, the concept of “Year’s Support,” and the types of assets that must go through probate.
What is Probate?
Probate refers to the legal process of administering a deceased person’s estate, which includes validating the decedent’s existing will, paying off any debts or taxes, and distributing the remaining assets according to the will or Georgia’s intestacy laws if no will is present.
In Georgia, probate is conducted by the Probate Court of the county in which the decedent was domiciled at the time of his or her death. The probate process in Georgia follows a series of steps, depending on whether the decedent had a valid Will, or if the estate will pass through Georgia’s intestate laws. Below is an overview of these steps based on whether the decedent did or did not have a will.
The Probate Process with a Will
When a decedent has a will, the probate process generally proceeds as follows:
Step 1: Validating the Will
The first step in probating a will is to determine its validity. Under Georgia law, a will must be in writing and signed by the testator (the person making the will) and at least two witnesses. The testator’s signature must be at the end of the document, and the witnesses must also sign the document in the presence of the testator. If the will meets these requirements, it is considered a valid will.
Step 2: Filing the Will and Petition for Probate
Next, file the will with the Probate Court. Along with the will, the petitioner (typically the person named as executor in the will) must file a petition for probate. This petition requests that the court formally recognize the will as valid and appoint the executor to administer the estate.
Step 3: Executor Appointment
After the will has been validated by the probate court and filed therein, the court will formally appoint the executor, who will be responsible for administering the estate. The executor may be a family member, friend, or professional fiduciary. The executor’s role is to manage the estate, including paying debts, handling tax filings, and distributing assets according to the will.
Step 4: Notice to Heirs and Beneficiaries
The court will then issue a notice to the decedent’s heirs, beneficiaries, and creditors, informing them of the probate proceedings. This notice allows interested parties to contest the will (if there are grounds to do so) or to file claims against the estate for outstanding debts.
Step 5: Inventory of Assets
The next step involves identifying and inventorying all assets in the decedent’s estate. The executor or administrator must take an accounting of all real property, personal property, financial accounts, and other assets the decedent owned at the time of death. These assets must be valued, and the court must be provided with a detailed list of them.
Step 6: Paying Debts and Taxes
Once the estate is inventoried, the next step is to pay any outstanding debts, taxes, and expenses. This includes paying funeral costs, medical bills, credit card debts, and state and federal estate taxes, if applicable. If there are insufficient funds to cover all debts, the estate may be required to liquidate assets. It is crucial to speak to an attorney about debts and whether they must be paid. This can often save the estate a lot of money.
Step 7: Distributing the Estate
After debts and taxes are settled, the executor will distribute the estate to the beneficiaries as outlined in the will. This may include transferring real estate, financial assets, or personal belongings. In some cases, the beneficiaries may need to provide certain documents to facilitate the transfer of ownership, such as title documents for vehicles or property.
Step 8: Closing the Estate
Once all debts have been paid and assets distributed, the final step is to close the estate. The executor or administrator files a final accounting with the Probate Court, which will then approve the closure of the probate process.
What is “Year’s Support”?
Under Georgia law, a surviving spouse and minor children may be entitled to a “Year’s Support” from the decedent’s estate. This provides the surviving family members with a certain amount of financial support to help them through the year following the decedent’s death.
A Year’s Support is a statutory right and can be claimed regardless of whether the decedent had a will. If there is no will, the surviving spouse and minor children are entitled to claim a Year’s Support to meet their basic living expenses. The Year’s Support typically includes a provision for housing, food, and other necessities.
How to Claim Year’s Support
To claim Year’s Support, the surviving spouse or minor children must file a petition with the Probate Court. The petition must include a detailed accounting of the support they need and show that the estate has sufficient assets to meet this need. The Probate Court will hold a hearing and determine the appropriate amount of support.
The Probate Process Without a Will (Intestate Succession)
If a person dies without a will, they are considered to have died “intestate.” In this case, Georgia’s intestacy laws will determine how the decedent’s estate is distributed. These laws prioritize family members for inheritance, with the following rules:
- Spouse Only: If the decedent was married and had no biological or adopted children, the surviving spouse is entitled to the entire estate.
- Spouse & Children: If the decedent was married with one child, the surviving spouse and the child each receive 50% of the estate. If the decedent was married with two children or more the surviving spouse is entitled to one-third of the estate, while the children share the remaining two-thirds.
- Children Only: If the decedent was not married but had children, the entire estate is divided equally among the children.
- No Children or Spouse: If the decedent had no spouse or children, the estate passes to the decedent’s parents first. If no parents are alive at the time of the death, the decedent’s siblings then inherit the estate siblings. From here, more distant relatives become the beneficiaries of the intestate estate according to Georgia law.
The court will appoint an administrator to handle the estate, based on Georgia’s intestacy laws, to handle the estate in place of an executor. This process is completed by filing a Petition for Administration. Once an Administrator is determined and an oath is taken, the Administrator is then responsible for paying the debts of the estate and making distributions to the heirs of the estate according to Georgia’s laws of intestate succession.
Types of Assets That Must Go Through Probate in Georgia
Not all assets must go through probate. Some types of assets pass directly to beneficiaries or co-owners, bypassing the probate process altogether. However, certain assets must be included in probate proceedings. Here is a breakdown of the key asset types and how they are treated in Georgia probate:
- Real Property
Real property such as homes, land, or other buildings is generally subject to probate is the decedent owned the property in their name alone. The probate process allows the transfer of title in the property to the rightful heirs or beneficiaries. However, if the property was jointly owned by husband and wife and titled as “Joint with Rights of Survivorship”, the property does not pass through probate. At Garrett Murphy Law, we are often asked if a client should add a child or grandchild to a piece of property to avoid probate. There are legal and tax ramifications to doing this, so be sure to consult with an Evans, Georgia Attorney and tax professional first.
- Personal Property
Personal property like jewelry, art, collectibles, and other valuables must also go through probate if it was owned solely by the decedent.
- Bank Accounts and Investments
Bank accounts, savings accounts, certificates of deposit, and investment accounts held solely by the decedent are subject to probate. However, accounts that are jointly owned or have a designated beneficiary (such as a payable-on-death account) may pass outside of probate.
- Vehicles
Cars, trucks, and other vehicles owned solely by the decedent are subject to probate. If the decedent had a joint owner or designated a beneficiary, the vehicle may bypass probate.
- Life Insurance and Retirement Accounts
Life insurance policies and retirement accounts such as IRAs or 401(k)s usually do not go through probate, as they typically have designated beneficiaries. However, if no beneficiary is named, the proceeds may become part of the estate and be subject to probate.
- Business Interests
Business interests owned solely by the decedent, such as shares in a corporation or partnership, must go through probate. If the decedent had a buy-sell agreement or another provision that dictates what happens to the business interest upon their death, these arrangements should be followed.
The probate process in Georgia can be complex, but understanding the key components can help ease the process for family members and loved ones of the decedent. Whether there is a will or not, the probate process is designed to ensure that the decedent’s estate is administered in an orderly manner, debts are paid, and assets are distributed according to the decedent’s wishes under a will or, when there is no will, Georgia’s intestacy laws.
Additionally, the Year’s Support provision can provide financial assistance to surviving family members. Understanding the types of assets that must go through probate is also crucial, as this will determine how the estate is handled.
If you have questions about Georgia’s probate process or need assistance navigating the complexities of probate law, contact an experienced Augusta probate attorney at Garrett Murphy Law. We help ensure that the estate is administered according to the decedent’s wishes and in compliance with Georgia law.