The probate process may seem unclear to many individuals after the death of their loved one. Unless someone is experienced in probate law, it may be confusing and a little intimidating to face the legal system in handling their loved one’s estate.
However, the process can be broken into three distinct phases, each with its own purpose in handling the estate of someone who has died with or without a will in the State of Georgia.
The first phase is often referred to as the appointment phase. It is during this part of the proceedings that someone is appointed by the court to represent the estate and handle all of the deceased individual’s affairs.
If the deceased left a will, the person who will be appointed is normally named in the will as an executor. If the individual did not leave a will, the court will appoint someone as the administrator to handle the estate.
Before this appointment can happen, a petition to probate the estate needs to be filed with probate court. In the petition, the petitioner will need to provide specific information to allow the court to determine who should be appointed, including whether a will was executed, if someone was named as executor in the will, and if that person is able and willing to be appointed.
Many other determinations will be made during this portion of the proceedings, including determining whether a bond is required, whether inventories need to be filed, and how much power the executor or administrator will be given.
Occasionally the court will waive a bond, as well as the inventory requirement. If the executor or administrator can be given expanded power, it makes the process a little easier and less expensive, as it allows the person to handle these matters on his or her own without court involvement. The only court appearances needed will be to open the estate and then to close the estate.
Administration of the Estate
Once the estate is officially opened, the next phase involves the administration of the estate. The administration includes determining the assets of the deceased, as well as the debts. Administering is essentially “settling the affairs” of the deceased.
If the beneficiaries or descendants of the deceased intend to keep any property or sell it, these decisions will need to be made during this phase of the probate case. If the deceased did not include this information in his/her will, the division of property will be decided according to Georgia’s intestacy laws.
It is also during this phase that the executor or administrator will need to determine who the creditors are, which ones will be paid and how much. This phase can take some time, especially if assets are hard to locate, or if creditors have filed claims against the estate.
Distribution and Discharge of the Estate
After the assets and debts have been handled, the next stage of probate involves distribution and discharge. The purpose of this phase of the proceedings is to officially close up the estate.
The executor or administrator will need to inform the court that all of the distributions have been made appropriately and all creditors have been properly handled. Many times, this phase will involve a court proceeding, especially if there is a creditor dispute that needs to be resolved or if beneficiaries are fighting over the distribution of the estate. The executor or administrator can also request a fee at this point for his or her services. If any taxes need to be paid, that will need to occur before the estate closes.
Georgia probate law allows two different ways to close an estate. The executor or administrator can ask the court to close the estate, or the executor or administrator can ask the court to close the estate but still maintain a liability shield to protect the executor or administrator from any additional claims.
Many times, this second option is the preferable option to protect the executor or administrator if any additional claims are anticipated. A probate attorney can discuss these options before deciding how to proceed in properly closing the estate and moving forward.
Contact Brian M. Douglas, LLC Today!
Although we’ve simplified the probate process into three phases here, the process can quickly become complicated without the assistance of an experienced probate attorney.
Call us at 770-933-9009 to schedule your consultation with a Greater Atlanta area probate lawyer today!