Estate and Probate

THE PROBATE PROCESS FROM START TO FINISH IN GEORGIA
FILING AN ESTATE IN GEORGIA PROBATE COURT

Atlanta Attorney Sharon Rowen is a frequent speaker at Georgia Continuing Legal Education Seminars for Georgia Estate and Probate lawyers. The following is a small part of a probate law paper written for the September, 2004 National Business Institute Probate Lawyer Seminar in Atlanta, Georgia. Though intended for the practicing Georgia probate attorney, non lawyers may find answers to some basic questions regarding Georgia probate law on heirs and beneficiaries.

PRIOR TO FILING A PETITION IN PROBATE COURT

Prior to the actual filing of an estate in the probate court, there are a few important preliminary matters, including the client interview, determining the immediate needs of the survivor, examining the safe deposit box and locating the will. Since most people are unfamiliar with estate administration procedures, in the initial meeting, the attorney should provide an overview of the basic steps of estate administration, and obtain basic information that is needed to begin the representation, such as information that is necessary to complete petitions, the immediate needs of the surviving family, and the location of the decedent's original will and safety deposit box. In addition, some information should be gained initially that will be helpful to the attorney in forming an idea of the course that the estate administration will have to take, including an overview of the will, and the types of assets the decedent owned.

It is important to obtain access to the safety deposit box and inventory the items it contains. The decedent may have kept his/her original will, stock certificates, property deeds, vehicle titles, jewelry, cash, and other important items in the box. These items need to be safeguarded by the personal representative and may need to be included on the decedent's estate tax return.

A decedent's will explains not only the manner in which the decedent wanted assets to be distributed, but also answers questions such as who should be executor, personal representative, potential guardian and/or trustee appointments, and a myriad of other issues. If no will can be found, the surviving spouse and children may only receive an amount of the decedent's estate that the intestacy law provides. Georgia law requires that the original will be filed with the Petition to Probate the Will. In addition, Georgia requires that anyone in possession of a will must file it with "reasonable promptness" in the probate court with jurisdiction over the decedent's estate.

A. SMALL ESTATE

One of the first things to determine is whether a personal representative should be appointed at all. There are occasions when it may be determined that a personal representative should not be appointed. Even if there is a Will, there is no requirement that a will be probated, and there are many situations in which probate of a will would accomplish no useful purpose. There may be no property left in the estate, or the purpose of the testator can be attained by an award of year's support. A spouse and/or minor children of the decedent may apply to have part or all of the assets of the estate transferred through an award of year's support rather than having a personal representative of the estate appointed. OCGA 53-3-1 et seq. However, if the purported will is to be relied on to pass the title to any property to any person other than the spouse or minor chidlren, the will must be probated in order to become effective for this purpose. Probate Judge's Handbook p. 59-60.

If there is no will, then OCGA 53-2-1 will govern as to who is entitled to what percentage of the estate. When an individual has died intestate and there has been no personal representative appointed, any heir of the decedent may file a petition praying for an order than no administration is necessary. OCGA 53-2-41. If there are no creditors of the estate or if the creditors have no objection, then an order finding that no administration is necessary shall confirm the vesting of title to the decedent's property in the heirs in the amounts and portions described in OCGA 53-2-1. The proceeding to dispense with administration is not available when the deceased died testate.

The obvious advantage to informal administration is that it avoids the requirements and procedures of formal administration. The disadvantage relates to the administrator's powers. If the administrator does not have probate court approval, as would be the case through filing a petition in formal administration, then the administrator has far fewer powers, and more administrative burdens to address, than an executor normally has. Under the Georgia Code, however, if all the beneficiaries or heirs consent, then a request may be made that the administrator have all the powers and releases from duty that the relevant personal representative section of the Code permits. See O.C.G.A. §53-12-232.

It is very important to determine what assets of the decedent are probate assets as opposed to non-probate assets. All of a decedent's assets may be subject to estate taxation. Not all of them, however, are subject to estate administration. Only probate assets must be gathered and distributed according to the terms of a decedent's will.

Probate assets pass under, or are distributed according to, a decedent's will. If there is no will, they pass under the intestacy laws of the state in which the decedent is a resident. Generally speaking, probate assets fall into three categories: assets held solely by the decedent, interests in property that the decedent owns as a tenant-in-common, and property that is payable to the decedent's estate, such as insurance where the estate is the beneficiary.

Nonprobate assets pass outside the decedent's will. Examples include any assets that the decedent owned as a joint tenant with a right of survivorship (so long as the other joint tenants survive the decedent); amounts that must be paid to another beneficiary besides the decedent's estate, including insurance, where the beneficiary is a child or the surviving spouse; and any assets that are "payable on death" or "transfer on death."

Specifically as regards joint ownership of securities in Georgia, stock held in a person's name or as a joint tenant can now be payable to a designated beneficiary (similar to insurance, IRAs, etc.) at the owner or surviving owner's death. Article 7 deals with Uniform Transfer on Death Security Registration. If a security is registered in compliance with this article in "beneficiary form", then the security passes to the beneficiary and does not become part of the estate of the deceased. This Registration in beneficiary form may be shown by the words "transfer on death" or the abbreviation "TOD"or by the words "pay on death" or the abbreviation ""POD" after the name of the registered owner and before the name of a beneficiary. A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and OCGA 53-5-60 et seq. and is not testamentary. This article only applies to registrations of securities in beneficiary form made before of after July 1, 1999 by decedents dying on or after July 1, 1999.

Even if the assets are probate assets, Georgia law allows some assets to be transferred without administration, particularly those of lower value.

1. Deposits of less than $10,000. If an individual dies with a deposit of less than $10,000 in a financial institution, the institution may pay the amount held in the following manner:
a) to the decedent's surviving spouse;
b) if none, then to the decedent's children;
c) to the decedent's parents if the decedent's children are deceased;
d) to the decedent's siblings, if the decedent's parents are deceased; and finally,
e) toward the decedent's funeral expenses, in an amount up to $10,000.
O.C.G.A. § 7-1-239.

2 . Personal Property of Patients in Medical Facilities. A hospital or nursing home may transfer the property of an individual who died in the facility to:
a) persons that the patient designated at admittance;
b) the surviving spouse or certain family members; or
c) an individual who assumes responsibility for the decedent's burial.
O.C.G.A. § 31-7-13.

1. Public Employee Wages. Public employees' wages may be paid to a decedent's spouse or family members if the government has not yet paid them. O.C.G.A. § 34-7-4.

2. Tax Refunds Equal to or less than $2,500. Tax refunds of $2,5000 or less automatically become the property of a decedent's surviving spouse. O.C.G.A. § 53-1-7.

3. Uncashed Checks. Uncashed checks that a decedent wrote can be cashed up to 10 days after the decedent's death. In addition, checks payable to a decedent for no more than $10,000 may be paid in a manner similar to the manner for payment of bank deposits described above. O.C.G.A. § 11-4-405.

4. Joint Assets. As discussed below, joint assets owned with a right of survivorship need not be administered, since the interest passes to the remaining joint owners by operation of law.

5. Year's Support. Year's support, an allowance set aside for a decedent's spouse and/or minor children for the twelve months after a decedent's death, may consume a decedent's entire estate in some instances. O.C.G.A. § 53-3-1(b).

B. Regular Estate

The probate court shall have exclusive jurisdiction over the probate of wills. The county of domicile of the testator at death shall give jurisdiction to the probate court of that county. OCGA 53-5-1. If the decedent was in a nursing home prior to death, the presumption is that the county of residence prior to the nursing home shall have jurisdiction. The right to offer a will for probate belongs to the executor if one is named. If not, any interested person may offer the will for probate. OCGA 53-5-2. There are time limits on offering a will for probate. OCGA 53-5-3. The forms for each of these types of probate can be found in the Uniform Rules for the Probate Courts, and the law which regulates these forms can be found at OCGA 53-5-17 and OCGA 53-5-21.

When an estate does need to formally administered, there are essentially four methods of formal estate administration:

1. Petition to Probate: If the decedent died testate, or with a valid will, a petition to probate the will should be filed in the county in which the decedent resided. O.C.G.A. §53-5-1. If the will names a person who cannot or will not serve, then a renunciation should be prepared and signed by the substitute executor. If the named executor has predeceased the testator, the petition for probate should recite that information, and the successor executor should immediately be notified. A will may be probated in several different ways, with a number of advantages and disadvantages. Probate of a will may be in common form or in solemn form or both. OCGA 53-5-15.

Notice of a petition for letters of administration shall be mailed by first class mail to each heir with a known address at least 13 days prior to the date on or before which any objection is required to be filed. If there is any heir whose current address is unknown or any heir who is unknown, notice shall be published once a week for four weeks prior to the week which includes the date on or before which any objection must be filed. OCGA 53-6-22.

• a. Probate in common form The advantage to probating a will in common form is that it does not require that notice be given to the heirs. The disadvantage is that it may be challenged until four years after the petition is granted, or for minor heirs, until four years after the minors reach the age of majority, which is eighteen in Georgia. O.C.G.A. §53-5-19. Probate in common form's use, therefore, is typically a temporary or preliminary action taken until probate in solemn form is possible. The requirements for probate in common form are as follows:
  • 1) filing a completed Georgia Probate Court Standard Form GPCSF 4, found at any Georgia probate court;
  • 2) filing the original will and any codicils, or amendments, thereto; and
  • 3) filing completed interrogatories to witness the will or codicil from at least one witness if the will or codicil is not "self-proving."A self-proving will or codicil is one that includes an affidavit signed by the testator and witnessed by two individuals and a notary showing all requirements for a valid will were met at the time of signing.
  • Probate in common form may be desirable when there are many heirs at law or the nature of the assets requires prompt collection and protection without delay due to notice requirements of probate in solemn form because a will may be proved in common form upon the testimony of a single subscribing witness and without notice to anyone. OCGA 53-5-17. In addition, common form probate is desirable when there is a probability of a caveat since no caveat may be filed to common form probate. However, the probate of a will in common form is not conclusive upon anyone interested in the estate adversely to the will until 4 years after probate, and in the case of minors, within four years after reaching the age of majority. OCGA 53-5-19. The executor under a will that is probated in common form acts in a manner similar to a temporary administrator of an intestate estate in that the executor is protected in the performance of the ordinary duties of collecting and preserving the estate assets and paying debts of the estate, but not in distributing property of the estate.

b. Probate in solemn form The advantage to probate in solemn form is that it is conclusive upon all parties who are notified and do not object to the petition to probate the will. The disadvantage is that it is conclusive only with regard to those who received notice. To give notice, the personal representative must obtain acknowledgments of service and assents to probate from each beneficiary or heir-at-law, or evidence that each was served by the sheriff or, if out of state, by certified mail. OCGA 53-5-22(b) lists the notice requirements for probate in solemn form. This includes notice to each beneficiary who has a present interest, including but not limited to a vested remainder interest but not including trust beneficiaries where there is a trustee and whose identity and whereabouts are known or may be determined by reasonable diligence; the duly acting guardian of each individual beneficiary with a present interest or power, other than a mere trust beneficiary, who is not sui juris; and each trustee.

These notice requirements may, under certain conditions and upon motion, be modified by the probate court. Letters Testamentary are filed after the petition is granted and the executor takes the oath of office. The Letters grant the personal representative authority to act for the estate.

Probate in solemn form is conclusive upon all parties notified and upon all beneficiaries under the will who are represented by the executor. The sole issue when a Will is presented for probate in solemn form is did the testator devise or not? (devisavit vel non) Neither the will's construction as a whole nor the validity of its terms is before the Court for determination. Common issues arising at probate which give rise to litigation are testamentary capacity, testamentary intent, due and legal execution of the will, revocation, and jurisdiction of the Court. Probate in solemn form requires due notice to all the heirs of the testator and to the beneficiaries and propounders of any other purported will of the testator for which probate proceedings are pending in Georgia. Service of a notice of petition shall be personal if the party resides in the state and shall be served at least 10 days before probate is made. OCGA 53-5-22.

Just as in a petition in common form, if the will is not self proved, then OCGA 53-5-23 states that a witnesses to a will may be examined in person or by written interrogatories. The probate Court has the power to compel the attendance of witnesses in the same manner as the superior court. If a witness is dead, or otherwise incapable of testifying, there is a procedure which must be followed.OCGA 53-5-24

2. Petition for Letters of Administration If a decedent dies with no will or the will is found invalid, a Petition for Letters of Administration must be filed to administer the decedent's estate. The petition must list the decedent's heirs-at-law and include the heirs' acknowledgments of service and consents to the petition. See §O.C.G.A. 53-6-21 & 53-6-22.

If there is no will, or if a will does not name an executor, or the nominated executor has reached the age of majority, has died, resigns or otherwise becomes disqualified to serve, or an estate is unrepresented for any other reason, the personal representative must file a petition for letters of administration OCGA 53-6-21 or letters of administration with the will annexed OCGA 53-6-15. The duties of an administrator with the will annexed are generally the same as those of an executor. If there is no will, an administrator may be unanimously selected by all the heirs of a deceased intestate. The only exception is if the sole heir is the decedent's surviving spouse and an action for divorce was pending between the deceased intestate and the surviving spouse at the time of death. If there is not a unanimous consent, the probate court will make the appointment that will best serve the interests of the estate, taking into consideration the following order of preferences: 1) the surviving spouse; 2) one or more other heirs or the person selected by the majority 3) any other eligible person; 4) any creditor of the estate and 5) the county administrator. OCGA 53-6-20. The petition to the court for letters of administration is outlined in OCGA 53-6-21 and OCGA 53-6-22, and the form is in the Uniform Rules. There are also rules for appointment of a temporary administrator. The probate court may at any time and without notice grant temporary letters of administration on an unrepresented estate and may appoint such person as the court determines to be in the best interests of the estate. OCGA 53-6-30. There are rules for the appointment of the county administrator, and for administration of an unrepresented estate by the clerk of the superior court if there is no county administrator.

Unless otherwise provided, any person who seeks to qualify to serve as the administrator shall be required to give bond with good and sufficient security. An administrator may be relieved from the requirement for giving bond by the unanimous consent of the heirs of the estate. OCGA 53-6-50. The bond shall be in a sum equal to double the value of the estate to be administered but if it is secured by a commercial surety authorized to transact business in Georgia, it need only be for the value of the estate. The value of the estate for purposes of bond shall be determined without regard to the value of any real property or improvements thereon. However, if the real property is sold and converted to personalty, then the bond shall be increased to include that amount. OCGA 53-6-51. The court may permit a bond to be decreased as the value of the estate decreases.

3. Petition to Probate the Will in Solemn Form and for Letters of Administration with the Will Annexed The person named in the will to administer an estate is referred to as an "executor" or "personal representative." If the decedent dies with a will but the named executor(s) cannot serve, then an heir or other interested party may file a Petition to Probate the Will in Solemn Form and for Letters of Administration with the Will Annexed, GPCSF 7. The Petition must set forth the circumstances giving rise to the need for an administrator with the will annexed and be accompanied by acknowledgments of service and assents to probate from each heir-in-law or each heir must be served with notice. Once qualified, an administrator with the will annexed has all the powers and immunities of an executor.

4 Letters of Temporary Administration To prevent wasting of or harm to the estate, an interested party may file Letters of Temporary Administration to appoint a temporary administrator. The powers of such an individual include: carrying out existing contracts of the decedent, carry on the decedent's business, and perform acts that are necessary to preserve the and protect the estate. The advantage of Letters of Administration is that it gives an individual immediate powers to handle pressing matters of the estate. The disadvantage is that the individual does not have the power and immunities that an executor typically has.

5 Ancillary Administration Personal Property – cash, jewelry, automobiles, etc.-- is governed by the laws of the decedent's domicile. Real property, however, is governed by the laws of the state in which it is situated, the situs state. Most significantly, title to real property may only be affected by the situs state. As a result, probate property located in another state must be administered through ancillary, or secondary, administration. Typically, the personal representative will file an "exemplified copy" of the documents already filed in the probate court of the decedent's domicile. Ancillary administration may possibly be avoided through recording a certified copy of the decedent's will in the ancillary jurisdiction with the deed register.

C. Estate Timetable

STATE:

1. ProbateWill or File Petition for Administration, with all notices to heirs and beneficiaries
2. Publish notice to debtors and creditors
3. File inventory within 4 months of qualifying, if required
4. File annual returns if required
5. File final return and application for discharge

FEDERAL:

1. Apply for taxpayer ID #
2. File notice concerning fiduciary relationship and IRS Power of Attorney
3. Select tax year for estate
4. File disclaimer(s) if selected (within 9 months of date of death)
5. File U.S. Estate Tax Returns (within 9 months of date of death)
6. File final income tax returns (April 15 of year following the last income earned by decedent)
7. File first estate income tax returns (April 15 of year following death if calendar year is selected)
8. Calendar last date for audit of estate tax return on early determination request.

D. Proving the Will

Even if there is a document which purports to be a will, before the personal representative can be appointed, the document must be examined to make sure that it meets the statutory requirements. In Georgia, no particular form is necessary to constitute a will. The test is the intention of the maker to be gathered from the whole instrument, read in light of the surrounding circumstances. The intention must be to convey an interest accruing and having effect only at death. OCGA 53-4-3. The individual must have had testamentary capacity. OCGA 53-4-10 et seq. It must be signed by the testator or by some other individual in the testator's presence and at the testator's express direction. It must be attested and subscribed in the presence of the testator by two or more competent witnesses. A witness is disqualified from being a beneficiary under the will, but the spouse of a beneficiary may be a witness. OCGA 53-4-23. No formal words are necessary for the nomination of an executor. An expression by the testator of a desire that the person carry into effect the testator's wishes shall amount to a nomination as executor. OCGA 53-6-10. The personal representative must be eligible to serve. Any individual who is sui juris, regardless of citizenship or residency, is eligible to serve as a personal representative or temporary administrator of a decedent who dies domiciled in this state. OCGA 53-6-1.

If the will does not name an executor, or the nominated executor has reached the age of majority, has died, resigns or otherwise becomes disqualified to serve, or a testate estate is unrepresented for any other reason, the personal representative must file a petition for letters of administration with the will annexed OCGA 53-6-15. The duties of an administrator with the will annexed are generally the same as those of an executor. If there is no will, an administrator may be unanimously selected by all the heirs of a deceased intestate. The only exception is if the sole heir is the decedent's surviving spouse and an action for divorce was pending between the deceased intestate and the surviving spouse at the time of death. If there is not a unanimous consent, the probate court will make the appointment that will best serve the interests of the estate, taking into consideration the following order of preferences: 1) the surviving spouse; 2) one or more other heirs or the person selected by the majority 3) any other eligible person; 4) any creditor of the estate and 5) the county administrator. OCGA 53-6-20.

E. Challenging the Will

Proceedings in the probate court are brought by written application or petition stating the grounds thereof and the order sought. Unless otherwise provided by law, if any notice of such application, other than any required published citation, is necessary under the law or in the discretion of the judge, the judge must cause a copy of the application, together with a notice of the time of hearing, to be served upon each party who resides in Georgia and to be mailed by registered or certified mail to each party who resides outside this state at a known address at least ten days, plus three days if mailed, before the hearing. Entry of service must be made upon the original application by an officer legally authorized to serve court proceedings. All objections or caveats must be in writing and must set forth the grounds for such caveat.

Links:

Simple Will Questionnaire
Georgia Probate and Estate Checklist
Outside of Georgia Probate Issues
Decedent with Property in Georgia
Contingency Fee Contracts with Minor Clients