Probate is a court-supervised legal process that may be required after someone dies. Probate gives someone, usually the surviving spouse or other close family member, authority to gather the deceased person’s assets, pay debts and taxes, and eventually transfer assets to the people who inherit them.
Probate in Georgia can commonly be conducted in about eight months to a year, unless there is a court fight over the will (which is quite rare) or unusual assets or creditors’ claims that complicate matters.
Probate court proceedings aren’t always necessary. Usually, they are required only if the deceased person owned assets in his or her name alone. Other assets can probably be transferred to their new owners without probate.
Examples of common assets that do not need to go through probate include:
In certain circumstances, any heir (person entitled to inherit under state law, in the absence of a will) can ask the local probate court for an stating that no probate is necessary. The court will grant the request if:
If the deceased person named you to serve as executor (generally called a personal representative or PR in Georgia) in his or her will, it will be up to you to step up and take charge of settling the estate. GA. Code Ann. § 53-5-2. If probate is necessary, you will go to the court and request to be formally appointed as personal representative of the estate.
If there is no will, or the person named in the will isn’t available or willing to serve, the probate court will appoint an “administrator.” This person does the same job as an executor and is also called the personal representative. The surviving spouse, if any, has first priority to be appointed as administrator (unless the couple was getting a divorce at the time of the death). GA. Code Ann. GA. Code Ann. § 53-6-20
An administrator may need to post a bond with the court; this is a kind of insurance policy that protects the estate if the administrator mismanages estate funds. GA. Code Ann. § 53-6-50
The personal representative takes an oath (GA. Code Ann. § 53-6-24) promising to act in the best interests of the estate, and the court will then issue a document called “Letters Testamentary” (if the executor was named in the will) or “Letters of Administration” (if the court appoints an administrator). This document gives the PR the duty and authority to:
The PR must keep careful records of how estate assets are handled and distributed; you may need to submit receipts, bills and bank statements to the court. The court may require certain reports about the estate, including:
Both of these reports must be sent to heirs and beneficiaries as well. An accounting won’t be required if all of the beneficiaries agree that it’s not needed or if the will states that it’s not required. GA Code Ann. §§ 53-7-67, 53-7-68, 53-7-30.
Usually, the PR will open a bank account for the estate and consolidate existing cash accounts in the estate account. Amounts that come into the estate (for example, compensation earned by the deceased person, refunds, and other miscellaneous payments) are deposited into the account, and its funds are used to pay estate expenses.
The PR has authority over any assets that go through probate. Probate assets can include vehicles, real estate, bank and brokerage accounts, and personal belongings (for example, jewelry, home furnishings, artwork, and collections). Life insurance proceeds that are payable to the estate (not a named beneficiary) are also probate assets.
If you need to sell some estate assets—to get cash to pay debts, or to get rid of assets that are declining in value—you may need to get prior approval from the probate court. It depends on the kind of asset and the authority granted you by the will. You’ll probably need court approval to sell real estate or business interests.
Within 60 days of starting to serve as personal representative, the PR must publish a notice of the probate proceeding in a local newspaper. This serves to let creditors know that they have three months (after publication ends) to come forward if they want to present a formal claim to the estate. Most creditors don’t make formal claims; they just send regular bills to the deceased person’s address. GA. Code Ann. § 53-7-41.
If there’s not enough money in the estate to pay all debts, the PR must turn to state law, which prioritizes claims. The family is paid first; the surviving spouse and children under 18 are entitled to a year’s support. GA. Code Ann. § 53-3-1. After that come funeral expenses, costs of probate (court filing fees, lawyers’ fees, and more), expenses of the last illness, and taxes, in that order. The list goes on; you’ll need to consult it only if the estate can’t pay all the bills. If that’s your situation, you’ll want to get legal advice before you start writing checks.
It’s also the PR’s job to file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself, if it receives income.
A federal estate tax return will be required only if the taxable estate is very large—for deaths in 2018, more than $11.18 million. Only about 1,800 estates are expected to have to pay federal estate tax under the current tax structure.
The PR can distribute estate assets to inheritors only after debts and taxes are paid. The PR follows the instructions in the will, or if there is no will, turns to state law to determine who inherits. Georgia law provides that the deceased person’s closest relatives inherit his or her assets. For example, if the deceased person is survived by a spouse and children, they share the estate. The PR usually prepares an accounting, showing who gets what, before distributing property. GA. Code Ann. § 53-2-1
When the PR has paid all debts, filed the required tax returns, and distributed all the estate assets, the PR files a Petition for Discharge with the court, asking to be formally relieved of his or her duties. If the court determines that the PR has performed all the duties required, the discharge will be granted. This closes the estate and releases the PR from any liability. GA. Code Ann. § 53-7-50
For more information on navigating the probate process and settling a loved one's estate, see The Executor's Guide, by Mary Randolph (Nolo).