Probate

The Petition to Probate generally is filed by the individual who is petitioning the Court to be appointed the Personal Representative. The Petition is one of many standard Probate Court forms that must be used in filings with the Probate Court.

The Petition contains information concerning the identity and date of death of the deceased, the heirs of the deceased, other information about the Estate, a statement that the Petitioner wishes to be named Personal Representative, and the basis for his or her qualification as Personal Representative.

The Petition to Probate is accompanied by an Assent to Probate form each of the heirs that do not oppose the probate. If the Affidavit accompanying the Will is deficient, the Petition may be accompanied by Interrogatories to the Witnesses to the Will.

Filing of the Petition to Probate generally begins the Probate Process.

If the Petition to Probate is in order, the Probate Judge will administer an oath of office to the Petitioner in which the Petitioner pledges to uphold the office of Personal Representative. Ordinarily, the administration of the oath of office requires a personal appearance at Probate Court. Once the oath is administered, the Probate Court will issue Letters Testamentary.

Letters Testamentary show that the Personal Representative has been duly appointed to his or her office. When trying to conduct the business of the estate, the Personal Representative may be required to sign legal documents, and he or she only can do so based upon the authority of the Letters Testamentary.

Once the Letters have been issued, the business of marshalling the assets of the Estate for future distribution can begin.

Once the Personal Representative has been appointed, he or she has a period of 60 days in which to run the Notice to Debtors and Creditors in the legal organ of the county in which the probate proceeding is pending. The Notice must appear for four consecutive weeks in the legal organ of the county in which the Probate action is pending.

The purpose of the Notice is to notify any creditor of the Estate and any party who is indebted to the Estate that the Estate is being probated. The creditor or debtor must move in response to the Notice to collect or pay the pending indebtedness before the Estate is closed.

Once the assets and debs of the Estate have been determined, the Personal Representative must pay the debts of the Estate from the available funds. The order in which the debts must be paid is set out by the Georgia legislature. The purpose of paying debts in a certain order is required so that if the assets are insufficient to pay all debts, the creditors that have inferior legal standing are those that are not paid.

The claim with the highest priority is a year’s support if it is awarded to the family of the deceased.

The next claim in priority are the funeral expenses of the deceased.

Third in line for payment are the expenses of administration of the Estate. This category includes professional services such as legal and tax advice, costs of sale, the commissions of the Personal Representative, court filing fees, and advertising costs.

The reasonable expenses of the last illness of the deceased are the fourth priority and are generally characterized as medical and care expenses.

The next level consists of debts due the United States such as unpaid taxes.

Liens, secured loans, and judgments against the deceased are the sixth level in priority. If there are multiple liens, the legislature has enacted additional laws setting priorities among liens.

The lowest level of priority is all remaining debt not fitting the priorities above.

The Personal Representative is required to pay the highest priority claims first, and if the Personal Representative fails to pay the debts in the correct order by paying a lower priority claim first, a higher priority claimant who was not paid may attempt to hold the Personal Representative liable.

All debts of the Estate must be paid before any distribution to the heirs.

Distribution of the assets of the Estate can occur only after all claims, taxes, and expenses have been paid.

If there is no Will, the assets of the Estate must be distributed in accordance with the Georgia statute of Descent and Distribution. The Probate Court must approve manner of distribution.

If the deceased made a Will, the Personal Representative is required to act as directed in the Will. If the Will contains a specific direction concerning a particular bequest, then the Personal Representative must distribute the item as directed by the Will. If the Estate contains funds only, then the specified amounts must be distributed to the beneficiaries. Real property may be distributed by deed to the intended beneficiary.

Personal Representatives need be aware that their actions may be scrutinized by beneficiaries or omitted beneficiaries. An interested person may file an objection in the Probate Court concerning the actions of the Personal Representative if there is a basis for disagreement over the manner of distribution of assets of the Estate.

Complete records should be kept of all transactions that have occurred in the administration of the Estate.

The Letters Testamentary issued by the Probate Court generally reflect the reporting requirements placed upon the Personal Representative. On many occasions, the Personal Representative is relieved of reporting to the Court by the terms of the Will.

If reporting is required, there are two types of reports that are most common.

Accountings or Returns – Within 60 days of the anniversary date of appointment, an annual return is due until the Personal Representative is discharged. The return states under oath the receipts and expenditures on behalf of the Estate during the prior year. The return also may contain an inventory of the assets of the Estate, and the Probate Court may require that receipts be filed. A copy of the return must be mailed to each heir or beneficiary, and the Personal Representative must certify to the mailing.

Inventory – Within six months of the appointment of the Personal Representative, an inventory is due. The inventory must show a list of all the assets of the Estate and the value. The Personal Representative must certify as to having mailed a copy to the heirs or beneficiaries, and he or she must state on oath that the inventory is accurate.