Probate in Georgia Without A Will

Georgia probate laws and procedures exist to help an individual accomplish the goals which that person considers to be important. Post-death goals typically include guardianship of minor children, payment of debts, and distribution of assets, including businesses and jointly owned property. Also a factor in estate planning may be the minimization of estate, capital gains, or income taxes. Many people have strongly defined wishes but do not take the steps to make a Will. Some feel that they don’t have enough ‘stuff’ to bother with. Others don’t find the time during life to make the necessary plans.

At any rate, when a person dies without a Last Will and Testament that person is called "intestate." The statutory laws of Georgia would be applied when the person is a resident of a Georgia County at the time of death. Residency is not mere presence (such as being an inpatient in a hospital) but having a usual and customary place of abode. Placement in a nursing home where the admission is on a temporary basis would not typically change the ‘legal residence,’ however if the patient is to remain there for the balance of his or her projected lifetime, the legal residence has probably changed.

When the appropriate county for probate has been determined, then some heir or creditor can initiate a request that the estate be probated. If there is a Last Will and Testament then it is required to be delivered to the Court. When a person holds custody of a Will and does not deliver it up they may be committing a criminal act called a ‘misdemeanor.’ But where there is no Will or the document cannot be found despite diligent effort, then the Court is asked to probate the estate as an intestacy. The person who is appointed by the Court to handle the details of the estate is called the ‘Administrator or Administratrix’ [depending on the gender of the person appointed]. If there is a Last Will and Testament, then the designated person is usually an ‘Executor or Executrix.’ Usually the administrator is the next of kin but that may be varied based on the Probate Judge’s determination, and could be a person who is appointed by the Court as a disinterested party – particularly in situations where the heirs disagree.

An administrator is required by law to post a bond for the ‘personal’ property. Georgia law usually assumes that real estate is safe but that personal property (which is basically all physical assets which are not real estate) could be improperly handled. Therefore a bond from a surety [insurance] company is required unless the Probate Judge finds reason to order otherwise. Most well crafted Wills waive the requirement of these statutory procedures, but without a properly written waiver, the Court must require: Inventory, appraisals, annual (or periodic) returns, and reports. Thus, the Administrator has to list the assets, define their value and report through the court what is anticipated to be done with them. Then Court Orders are required so that assets can be sold, mortgaged, distributed, or otherwise removed from the Estate. Obviously, this is a more time consuming and costly procedure that mere probate of a simple Will.

In an intestacy, the Surviving spouse does not inherit the entire estate. He or she will get a child’s part, but not less than a certain fraction. If any of the decedent’s children are still minors, they and the surviving spouse can ask for special protection from the probate court called "Year’s support or twelve month’s support." If the Court approves the request for this post-death spousal or minor support, then that amount is paid regardless of the amounts owing to creditors. Thus, by use of year’s support awards, an estate which has more debts than assets can still pass assets to surviving spouse and minor children and the creditors simply remain unpaid.

Disadvantages of Administration rather than probate with a Last Will and Testament include

• the public nature of the probate,
• the more intensive court involvement in decisions,
• the potential of controversy between heirs,
• the expense of compliance with the statutory requirements,
• as well as the fact that the wishes of the decedent may not be followed.

The administrator has no right to make charitable gifts or to forgive the collection of debts, for example, even though the deceased person may have sincerely wished to have these acts occur.

Finally, it is rare, but occasionally a death may occur as the result of someone’s negligence or wrongdoing – such as a vehicle accident. Without a proper Last Will and Testament, the Probate Court must empower the administrator to maintain a lawsuit and must coordinate on the terms of settlement. Occasionally an estate must be probated merely for the purpose of pursuing these claims. Use of techniques such as joint ownership of assets so that ‘probate is avoided’ can merely leave the administrator without any cash with which to take necessary actions rather than accomplishing the elimination of Court involvement.

Crafting of a proper estate plan should consider potential complications, the relationships of family members, tax planning, asset control, and such other issues so that passage of responsibility and ownership does not become a separate level of grief and regret. Preparation of a Will may seem like an unwelcome expense but it can save the estate literally thousands of dollars in potential probate administrative expenses.

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