Are you having to, or about to, deal with the Georgia probate process?
This post deep dives everything about how to navigate the probate process smoothly.
Let’s get straight into it.
What is probate?
Probate simply means that the courts are verifying the last will and testament that the deceased individual made.
With that, it includes:
- appraising the value of their assets (real estate, investments, banking, etc.)
- paying off their final bills and taxes
- distributing the remaining funds and estate
Georgia Probate Table of Contents
- When Is The Probate Process Required?
- Last Will and Testament in Georgia
- Appointing the Executor of Estate Georgia
- Posting Georgia Probate Bond
- Locating the Decedent’s Assets
- Determining Date of Death Property Values
- Identifying and Notifying Creditors
- Paying the Decedent’s Debts
- Preparing and Filing Tax Returns
- Distributing the Estate in Probate
- Intestate Succession Georgia
When Is The Probate Process Required?
What probate laws you have to follow depends on the state that the deceased individual lived in. Each state has different probate laws, called “probate codes.” There are also for how to handle cases where there was not a will or estate plan, called “intestate succession.”
But what if the person didn’t have a will?
No matter how things play out, the reality is that probate is still required so that the decedent’s bills get paid off and their estate gets distributed.
Last Will and Testament in Georgia
In Georgia, if you have possession of a deceased’s will, you must file it with the courts as soon as possible.
Filing probate could go one of two ways.
You’re either filing an application or a petition to open the probate of the estate.
When you file the will to the probate courts, you will file the application or petition at the same time.
Navigate down to “Standard Forms” and click on that. You’ll be taken to all of the forms that you need.
Getting and submitting a petition isn’t that bad. You don’t even need an attorney for this part of the probate process.
If the decedent left a will, the judge will confirm that it is valid.
This typically involves a court hearing.
If there is a court hearing, the judge will notify all of the heirs.
The hearing lets everyone have a chance to object to the will.
Maybe it wasn’t correct, it’s not what they were promised, or there is a more recent will.
They can also object to the person being appointed as the executor of the estate.
But how does a court even prove that the will is real or a phony?
They usually prove the wills with something called a “Self-Proving Affidavits.”
A self-proving affidavit is a notarized form that is created when the will is created that includes the individual’s and a witnesses’ signature. These signatures attest to the validity of the will.
So, what happens if there is not a self-proving affidavit attached to the will in question?
If there is a will, but no self-proving affidavit, then the persons who witnessed the will being generated have to sign a sworn statement or testify in court that they watched the decedent sign the will and that will in question is the final will.
Appointing the Executor of Estate Georgia
If the decedent does not have a will that appoints an executor, the probate judge will appoint the next of kin.
Next of kin is the closest blood relative.
The line of inheritance begins with direct offspring: children, grandchildren, great-grandchildren, and so on.
If the deceased had no offspring, the line of inheritance moves upward to their parents. If the parents are no longer alive, collateral heirs—brothers, sisters, nieces, and nephews—are next in line.
But the next of kin individual may not want this new responsibility. They are not obligated to serve as the executor. They can decline and the probate court will appoint someone else.
The executor will be given a letter of testamentary from the probate courts.
Acting as the executor of an estate means you’ll be in charge of paying bills, inventorying assets, and making distributions to beneficiaries.
But to do all of this you have to be given the legal authority to act by a court.
Posting Georgia Probate Bond
You might be thinking of jail bonds.
But the way probate bonds work is not much different.
Probate bonds are required by the probate courts in Georgia.
Let’s say that the estate is worth $500,000. The probate courts require you have a bond for ‘insurance’ against mismanagement of the estate.
The bond acts as an insurance policy that will kick in to reimburse the estate in the event the executor commits some grievous error—either intentionally or unintentionally—that financially damages the estate, and, by extension, its beneficiaries.
How much does it cost to do a bond for probate?
Probate bond companies charge roughly 0.5% of the estate value. If the estate is worth $500,000, then the probate bond amount in Georiga will be $2,500.
Does Georgia Require a Probate Bond?
If the heirs all agree on how to divvy up the estate, then the probate courts can waive the probate bond requirement. If the estate division is in question, or the will did not appoint an executor, then Georgia requires a probate bond.
Who pays for a probate bond?
In Georgia, the appointed executor of the decedent’s estate is responsible for the probate bond. These bonds guarantee that all the estate debts will be satisfied and that the remaining assets will be properly distributed to the appropriate heirs.
Locating the Decedent’s Assets
So you just became the executor.
Your first order of business is to locate and take possession of all of the decedent’s assets. It’s your responsibility to protect these assets during the probate process.
The trouble here is trying to find all of the assets that someone owns. Some people don’t tell everyone about what they own.
Your family law attorney in Atlanta can help you dig up the assets that an individual owned.
If you don’t want to work with an attorney on this, there are other ways to find the assets. Digging through insurance policies, tax returns, and other documentation will give you more insights. When you call the insurance company or CPA, make sure that you have your letter of testament ready.
So you’re tasked with ‘protecting’ the estate.
You’re not moving into their house and barricading it from creditors.
To protect the real estate during probate, the executor must make sure that everything continues to be paid on time like property taxes, insurance, and mortgage payments. If the executor doesn’t make payments, the property will be lost to a Georgia foreclosure or a tax auction from a Georgia property tax lien.
Other assets that actually need protection could be jewelry, vehicles, collectible items, etc. that can easily be stolen. Keeping these in a safe place will ensure that the estate is protected and you don’t have to pay everyone out of your own pocket. (Remember that probate bond?)
The executor might literally take possession of other assets, however, such as collectibles or even vehicles, placing them in a safe location. He’ll collect all statements and other documentation concerning bank and investment accounts, as well as stocks and bonds.
Do bank accounts have to go through probate?
When you set up your insurance, IRAs, retirement plans, and bank accounts you are able, or forced, to name a beneficiary. When you die, these funds skip probate and are paid directly to the beneficiary. Without a will or named beneficiary, these funds will go through probate.
What is considered an asset for probate?
Probate assets are anything with value, equity, or cash flow solely owned by the decedent. For real estate, the title must be only in the decedent’s name (no co-owners). For personal property, this can be jewelry, savings, vehicles, cash, etc.
What happens to a jointly owned house when someone dies?
Determining Date of Death Property Values
The executor must have all assets professionally appraised as close to the date of death as possible.
For real estate, this means having a home appraisal done on the property to find the as-is value of the property.
To appraise valuables such as art, vehicles, furniture, firearms, electronics, etc., check out this resource on how to value personal property.
Georgia requires the executor to appraise all of the property in the estate before creditors and distributions to heirs are paid out.
How do you determine the fair market value of an inherited house?
The fair market value of an inherited home is determined by having an appraisal done on the property within the month of the death of the homeowner. If an appraisal is not made in time, a real estate agent performing a CMA (Certified Market Analysis) of the house at the time of death is the only way to find the value of the home.
How do you determine fair market value?
Fair market value is the price that someone is willing to pay for the property. To determine how much someone would pay for your property, ask a Realtor to give you a list of recently sold homes in the neighborhood in the exact same condition. This will provide you with an accurate fair market value of the property.
Identifying and Notifying Creditors
Ahh, the dreaded creditors…
So that the assets don’t have liens put on them, you’ll need to notify the creditors that the individual has passed away.
But what about the creditors that you can’t find?
Georgia publishes obituaries in the local newspapers. This helps creditors know whether the people who owe them money have passed away or not.
Creditors typically have a limited period of time after receiving the notice to make claims against the estate for any money they’re owed.
If the executor believes that the creditors are falsely claiming debts then they can petition the courts to have the probate judge decide if the claims should be paid.
After the probate courts have appointed an executor, a six-month hold gets placed on all creditors. No collections are legally allowed to be made with the exception of a mortgage and vehicle loans. Inheriting a house with a mortgage means that you still have to keep those payments current. If you don’t make these two payments, foreclosure can still happen. All other payments have a six-month window where the accounts are frozen.
Georgia probate law provides this window of payment freezes for two reasons. The family needs time to get the estate in order. The probate process is also intended to be a very organized process. The probate process allows creditors, beneficiaries, and heirs to be paid in order.
What does notice to creditors mean?
A notice to creditors informs them that they are able to make claims to collect debts owed against an estate.
How are creditors notified of death?
Creditors report unpaid dues to the credit bureaus. As the executor, you should notify Experian, TransUnion, and Equifax of the person passing away. They will flag their accounts as “deceased.” This notifies creditors and keeps credit from being issued on this individual.
How do I publish a notice to creditors?
Creditors are obligated to be notified of the person passing away. Local newspapers notify the public via obituaries. Once the obituary is posted, creditors have 6 months to make any debt collection claims against the estate.
What debts are forgiven when you die?
Student loans are the only debts that are forgiven when you pass away. However, if you have any money in your estate, that money is required to go towards paying down the student debt before it is forgiven.
Paying the Decedent’s Debts
After locating the creditors, you have to pay them. The executor uses the estate monies to pay any debts or final bills, including medical bills.
What if there is no money in the estate to pay debts?
Creditors are only able to go after the estate to collect debts. As the executor, you are not responsible for coming out of pocket to make these payments. If the estate doesn’t have enough money to pay back debts, then the creditors are out of luck.
Do bills have to be paid after death?
As executor, you have to prioritize bills that get paid. To find out which creditors get paid first from an estate, you must follow Georgia laws. These laws determine who gets paid in full, who gets partial payments, and who gets paid nothing.
Preparing and Filing Tax Returns
As the executor, your duties don’t stop.
You have to also file the personal income tax returns for the year in which the individual passed away. This determines any tax liabilities that the decedent has. If there are any, the taxes will be paid out of the estate.
This may mean that you have to liquidate assets to pay off taxes that are owed. Estate taxes are due within 9 months of the decedent’s death.
Distributing the Estate in Probate
Now that all of the debtors have been paid out of the estate, it’s time for the fun part…
The remaining monies that the estate contains are now allowed to be petitioned so that the executor can distribute the remaining assets to the heirs.
This requires the court’s permission. They simply want to make sure that all debts are paid prior to distributing the funds.
Permission is usually only granted to the executor that submits complete accounting of all financial transactions they have made throughout the probate process.
The form that the executor submits to the probate courts lists and explains all expenses paid and income received by the estate.
How long does a trustee have to distribute to beneficiaries?
This depends on whether or not the decedent’s tax return is required. If it’s required, beneficiary payouts can take up to three years. If no tax return is required, it can be as little as 6 months. It’s safe to assume that it’ll take 12-18 months to receive estate payouts to the beneficiaries.
Can an executor withhold money from a beneficiary?
Beneficiaries have a right to submit a petition to the probate courts to address grievances against the executor. Probate courts provide beneficiaries the right to recourse against an executor if they are handling the estate improperly.
What happens if an executor does not distribute an estate?
If the executor does not distribute the estate, you can; send a certified letter requesting distribution, request that the courts replace the executor, or ask that the probate courts distribute the remaining assets.
Intestate Succession Georgia
Intestate estates are ones that the decedent did not have a will.
For example, if your 29-year-old son suddenly passed away in a car wreck, he probably did not have a will.
Intestate can also mean a will that was created but is invalid.
The argument here is that the will was not the final will that the decedent created.
For example, let’s say that your parents created an updated will every 5 years. So, they have a will for their ages of 45, 50, 55, 60, 65, and so on. If they pass away at 71, then the will created at 70 years old is the valid will.
If someone presents the probate court with the will created at 60 years old, then that will is not valid. The probate courts have to prove that the will they are looking at is the most valid, up to date will.
The most significant difference is that in the absence of a will that makes his wishes known, the decedent’s property will pass to his closest relatives in an order determined by state law.
Selling Your Inherited House Georgia
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