When a person passes away in Georgia, it is the court’s responsibility to make sure the decedent’s estate is properly administered. The courts will use the probate process to determine whether the decedent had a valid Will and to ensure that all of the decedent’s assets are properly distributed and his/her debts are paid.

What happens if the decedent did not have a will?

Having a valid Will makes the probate process much easier, as the decedent’s wishes are clearly laid out in a written document. If the decedent died with a valid Will in place, the executor will simply execute the Will as written.

While Wills are considered an essential part of the estate planning process, the reality is that many people die without one. In that situation, the court will appoint an administrator to collect the decedent’s assets for distribution. In Georgia, if someone dies without a Will and their heirs can agree on how to split up their assets, a request can be filed with the court to skip probate altogether. The heirs will need to provide the court with a written plan, detailing how the assets will be divided, and file a “Petition for Order Declaring No Administration is Necessary.” Keep in mind that any creditors of the decedent will also have to agree to the written plan.

If the decedent left behind a smaller estate, a simplified probate process known as ‘summary probate’ may be an option, even if there is a Will in place.

While the probate process in Georgia is fairly straightforward, avoiding probate saves surviving family members time and trouble. However, it can be hard to get all heirs and creditors to agree to the same plan.

What assets are not subject to probate?

Not all of the decedent’s assets are considered as a part of the decedent’s probate estate. The following assets generally are not included in the probate process:

• Assets held in joint tenancy
• Retirement plans / life insurance policies with a designated beneficiary
• Property in a revocable or irrevocable trust
• Bank accounts featuring a payable on death (POD) or transfer on death (TOD) clause

The probate process can be difficult to navigate, particularly for a person who has lost a loved one. An estate planning attorney with experience in dealing with the probate process in Georgia may be able to guide you and your family through this difficult time.

Cook & Tolley, LLP
304 E Washington St
Athens, GA 30601
(706) 549-6111
https://www.cooktolley.com/