Probate is the legal process that takes place after someone dies. In Probate, final debts are settled and legal title to property is formally passed from the decedent (the person who died) to his/her heirs. Probate ensures the legitimate and orderly transfer of property at a person's death. It is initiated in the county of the decedent's legal residence at death. The process involves proving the decedent's death, determining whether a document is a valid will or, in the absence of a will, who are the lawful heirs, and updating transferable title to property while protecting the rights of legitimate creditors. The following questions and answers will help you better understand the probate process.
Who is Responsible for Handling Probate?
In most circumstances, the "Executor" (or "Personal Representative") named in the will is responsible for probate. Any individual who is over age 18 and of sound mind may serve as a personal representative in Georgia regardless of citizenship or residency. If the deceased died without leaving a will ("intestate") or failed to name an executor, the probate court designates an "Administrator" to manage the process. The judge's order also formally appoints the Executor. This appointment confers on the Executor full authority to manage the decedent's accounts. The Executor is given a certified court document that will be recognized by financial institutions and companies or persons with whom the Executor will have to deal to conclude the affairs of the deceased. This is often called the "Letters of Administration" or "Letters Testamentary." The personal representative must take action to gain custody and control of all of the decedent's assets since he or she will be personally accountable for the management and disposition of all of the property of the estate. The basic duties of the personal representative will be to collect and preserve the assets of the estate; to pay all debts of the decedent and expenses of administration including taxes; and finally to distribute the remainder of the estate to those persons entitled to it. The Personal Representative inherits an awesome responsibility and these duties can be time consuming depending on the estate to be probated. Be sure to choose wisely when designating a Personal Representative.
If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.
What Happens During the Probate Process
Probate usually includes proving in court that a decedent's will is valid (usually a routine matter), identifying and inventorying the decedent's property, having the property appraised, paying debts and taxes, and distributing the remaining property as the will directs.
Usually, the first step is taken by the Executor, or other interested person who has the original will. This person should file (with or without the assistance of a lawyer) a Petition for Probate of Will and Appointment of Executor (the nomenclature may be different among states). Many county probate courts provide pre-printed forms to assist individuals initiate the probate process without professional assistance. A web site at www.gaprobate.org guides users through the steps required to download and print blank forms for many probate proceedings in Georgia. The site contains some 55 standard forms associated with the functions of the Probate Court provided by the Georgia Council of Probate Court Judges. If there is no will, someone, usually a family member, must petition the court to appoint an Administrator.
After the will's genuineness and validity are established, the court issues an order "admitting the Will into probate," or a similar proclamation that the will is "official." The County Clerk then records the will. State law might then require public notice of the probate proceeding by placing ads in local newspapers.
Once probated, a will is a public record, and so is the final settlement and inventory of estate property. This is a fact of great concern to some people, especially the heirs of very wealthy persons or celebrities.
How does the Probate Process Actually Work?
The Probate Process Involves Three Basic Steps:
1) Collection, inventory and appraisal of all assets that are subject to probate;
2) Payment of taxes and creditors;
3) Formal transfer of estate property according to the will, or by the state law of intestate succession, if there is no will.
The surviving spouse and/or children are generally allowed a set-aside under state law, whether or not there is a will. Generally, that comes "off the top" first. After that, the order of payment of claims against the estate is usually:
1) Costs and expenses of Administration (i.e., lawyer's fees and court fees)
2) Funeral expenses
3) Debts and taxes
4) All other claims
What remains of the estate after these payments are made is available for distribution to heirs and beneficiaries.
What if there is Not Enough Money or Property to Satisfy What is Specified in the Will?
If there is not enough money or property to distribute to those designated in the will, then the order of distribution is usually as follows:
1) Specific bequests of property, to include real estate (for example, "I give my 1957 Chevy to John Smith" or "I give my house at 32 Main Street to my daughter Joan"). In the event that the specific item has been sold, destroyed or is otherwise no longer available, then the intended recipient will NOT receive something else in its place.
2) Specific Cash Bequests. For example, "I give $500 to my cousin Tony."
3) Residuary estate. That property that is left over after the specific bequests are distributed to the intended beneficiaries. This is often the largest part of the estate. It can diminish quickly, however, if the decedent has many debts upon his death.
Is there a way to Avoid Probate?
The best way to avoid probate is to have property that does not pass through a will. For example, a servicemember's SGLI, other insurance policies, joint accounts, accounts that are made Payable on Death (P.O.D.) or Transferable on Death (T.O.D.), certain retirement accounts (IRAs) or pensions, or property owned jointly with a spouse or other person does not pass through a will and therefore, does not go through probate. Also gifts made before death do not go through probate and are not taxed if under a certain dollar amount. Having property bypass probate may be beneficial to certain individuals as the property passes much quicker to the beneficiary and in certain circumstances tax-free.
For property that does pass through a will or by intestate succession, however, most states (not including Georgia) now offer simplified procedures for small estates. The definition of small estate and the process varies by state, but there are two basic kinds of probate shortcuts for small estates:
1) Claiming property with affidavits (no court required): If the total value of all the assets you leave behind is less than a certain amount, the people who inherit your personal property -- that's anything except real estate -- may be able to skip probate entirely. The exact amount depends on state law, and varies hugely. If the estate qualifies, an inheritor can prepare a short document stating that he or she is entitled to a certain item of property under a will or state law. This paper, signed under oath, is called an affidavit. When the person or institution holding the property -- for example, a bank where the deceased person had an account -- receives the affidavit and a copy of the death certificate, it releases the money or other property.
2) Simplified court procedures: Another option for small estates (again, asan>defined by state law) is a quicker, simpler version of probate. The probate court is still involved, but it exerts far less control over the settling of the estate. In many states, these procedures are straightforward enough to handle without a lawyer, so they save money as well as time.
Like most legal processes, probate involves time and paperwork. However, it is in most cases a necessary process to ensure the wishes of the decedent is carried out and the rightful beneficiaries and heirs are protected. Moreover, probate is necessary is to update the title to property so that it may later be sold. Probate prevents fraud in transferring a decedent's property and it protects inheritors by promptly resolving creditors' claims as well. It is often wise for Personal Representatives to hire probate lawyers or financial institutions to assist, especially when the dealing with a substantial estate. Although, the process may be perceived as inconvenient, costly, and unnecessary, it is one that will protect the rights of all interested parties to include that of the decedent.
If your have further questions, contact the Fort Gordon Legal Assistance Office at 791-7883 or DDEAMC OCJA on Wednesdays at 787-4097 to make an appointment to talk with an attorney. Be sure to have your ID card. Remember, seeing a lawyer early may not only solve a problem you have, it may resolve or allow you to avoid a problem in the future.