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What should I know about the probate process in Georgia?

Authored By: GeorgiaLegalAid.org

Probating a will in Georgia

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What is the probate process in Georgia?

When a person dies and has a will, the will generally needs to go through the probate process. Probate is the legal process that gives a person called executor or personal representative the authority to:

  • Gather all of the deceased person’s assets,

  • Pay off any debts and taxes, and 

  • Give the remaining assets to the people named in the will.

 

In Georgia, probate generally takes about a year to complete.

 

The probate process can be complicated. In general, the steps for probate are:

  1. File the will with the probate court. After the person dies, you should locate their will and file it with the probate court in the county where they lived. You must file the will even if you do not intend to go through the probate process. 

  2. Petition the court to start the probate process. The family or executor must file a petition and pay court fees to begin the probate process. There are different forms that must be filed depending on the circumstances of the will. The court will appoint a personal representative to deal with the deceased’s assets and debts. This may be the person named in the will as an executor or another person appointed by the court. 

  3. Collect all of the estate’s assets. The deceased’s property is called their estate. After the will is filed, the personal representative should gather all the property in the estate. The personal representative will then need to file a report with the probate court.

  4. Pay the deceased’s debts. The personal representative has to pay all of the deceased’s outstanding debts out of the estate. Debts might be to creditors or outstanding taxes. In order to give notice to the debtors, the personal representative must file a notice to creditors in the local newspaper.

  5. Distribute the remaining assets. After all the debts are paid, the personal representative will give anything left to the people named in the will. The personal representative must:

    • Get evidence that the beneficiaries got the assets,

    • File a final report with the court to close the estate.

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When do I need to probate a will in Georgia?

Even if there is a will, probate proceedings might not be necessary. In general, a will does not need to be probated if:

  • The deceased did not own any assets in their name only, or

  • The deceased only had non-probate assets. Non-probate assets are those that can legally be distributed without going through the probate court. These assets include:

    • Assets that are owned with another person. These assets automatically go to the other owner.

    • Assets that have a named beneficiary. Many times you can name a beneficiary on a bank account, retirement account, or life insurance policy. These assets do not need to go through probate before they are distributed.

    • Assets held in a trust. A trust is a document like a will that distributes a person’s property after they die. Unlike a will, a trust does not have to go through probate. 

 

You must still file a will, even if you do not have to go through the probate process. 

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What are the rights and responsibilities of the executor of a will?

Even if you are named as an executor of a will, you do not have to accept this role. It is important to know that if you are the executor and mismanage the estate funds, you could be personally liable for those losses. If you refuse the position, the court will appoint another person.

 

If you do agree to act as an executor, you have certain responsibilities. Your overall duty is to carry out the wishes in the will. 

 

You may be responsible for:

  • Filing the will. 

  • Beginning the probate process if it is necessary.

  • Using funds from the estate to pay for funeral and burial/cremation expenses. The funeral home will provide the death certificate, which you’ll need to complete many tasks.

  • Gathering the estate’s assets. You will need to find any assets and manage them until they can be distributed to creditors or beneficiaries. You want to try to make sure that assets do not lose value during the probate process.

  • Paying off any debts and taxes. You must pay off debts before you distribute any gifts in the will. 

  • Distributing any gifts to the people named in the will. 

  • Closing the probate.

 

To help you with your responsibilities, you may want to consult a probate attorney.

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What can I do? +

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How do I file a will for probate in Georgia?

Once you locate the will, you should file it with the probate court in the county where the deceased lived. If you wish to start the probate process:

  • File a Petition to Probate Will in Common Form or a Petition to Probate Will in Solemn Form. You can find all standard probate forms on the Supreme Court of Georgia website.

    • Most times, you will file the Solemn Form. A Common Form is only needed when the will might be contested.

    • In the Solemn Form, you must give information about the deceased’s heirs (their living relatives). This is true even if the heirs are not listed as beneficiaries in the will. The heirs will get notice that a will has been filed. 

  • Pay the filing fees. Filing fees must be paid when the petition is filed. Filing fees may vary by county, so check your local probate court website for more information. 

  • Interrogatories to the Witness of the Will. Many wills include a document called a “self-proving affidavit.” If the will does not, then you must file the form “Interrogatories to the Witness of the Will.” On this form, each person who witnessed the will must confirm that: 

    • They signed the will,

    • They were of sound mind and at least 14 years old when they witnessed the will,

    • They witnessed the deceased sign the will,

    • The deceased was of sound mind and at least 14 years old when they signed the will, and 

    • The deceased knew they were signing a will and did it freely.

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Last Review and Update: Oct 23, 2020