Georgia Probate: The Ultimate Guide

 

By Vincent Hein, attorney

 

If you’re looking for information about probate in Georgia, you’ve come to the right place. Read on for a detailed overview of probate in Georgia, and to find out if you qualify for Georgia’s simplified probate procedure.

Do you need probate in Georgia?

Probate is a legal process which involves distributing a person’s assets and covering their debts and taxes after they die. Assets held or titled solely in the decedent’s name will generally go through the probate process before being distributed to the heirs or beneficiaries.  

 Examples of probate assets include:

  • Single name bank or investment accounts
  • Assets owned jointly as tenants in common (as opposed to joint tenancy)
  • Art and collectibles
  • A house in a single name
  • An automobile in a single name
  • Safety deposit box contents

If you are looking for more clarity regarding which assets need to go through probate, see What Assets go Through Probate?

Simplified Probate Procedures in Georgia

Georgia allows for a simplified probate procedure if certain conditions are met. You may qualify for the simplified probate procedure in Georgia if:

  • there is no will, AND
  • the estate has no debt, AND
  • the heirs are in agreement about the division of the estate amongst or between themselves.  Ga. Code Ann. § § 53-2-40.

If you have probate assets, and the assets do not qualify for the simplified procedure based on the qualifications listed above, then you will be required to go through the full probate process.

See: What Is the Probate Process?

Who is in charge of the estate?

If there is a will, a personal representative is named in the will to manage the probate estate. If the named personal representative is unable or unwilling to serve, then the next personal representative named in the will (called the successor personal representative) may serve. Note that sometimes the word “executor” is used instead of “personal representative”.  

If no one named in the will can serve as personal representative, then the beneficiaries of the will must appoint a personal representative. The beneficiaries must either agree unanimously or reach a majority vote. If not, the probate court decides.

Similarly, if there is no will, the heirs at law must decide and agree on who will administer the estate. The “heirs at law” are usually the surviving spouse, or if there is no surviving spouse, then the children of the deceased, with certain exceptions for blended families. The heirs at law must either agree unanimously or reach a majority vote.

To demonstrate that someone is in charge of the probate estate, the court issues Letters Testamentary (if there is a will) or Letters of Administration (if there is no will) to the personal representative. The personal representative shows the Letters as proof of their power to act on behalf of the probate estate.

Notice to Creditors

After being appointed personal representative, the personal representative has 60 days to publish  notice of the probate in a local newspaper. The notice advises creditors they have three months (not 90 days) from the final publication to submit claims or they lose their priority. Note this is different from many states where the state statute reads claims are “forever barred” if not submitted within the deadline given in the notice. Creditors in Georgia, however, can still collect after the three months. Creditors simply “lose all rights to an equal participation with creditors of equal priority”, meaning they can still collect, but they no longer have the priority claim they would have if they submitted the claim before the deadline passed. GA. Code Ann. § 53-7-41.  Notice must be published once a week for four weeks in the official newspaper of the county in which the personal representative was appointed. GA. Code Ann. § 53-7-41.  

What do I need to get started on the probate process?

Before you file a probate, there are a few things you need to get in order:

  • A death certificate
  • The will (if there is one)
  • The names and addresses of the heirs or beneficiaries  

The first step is generally to give notice to all the beneficiaries or heirs. If you are the one who either intends to manage the probate estate or you are named in the will to manage the probate estate (and you accept the position), it is your job to give notice and gather the signatures.            

How long does probate in Georgia take?

In Georgia, most probates can be done in eight months to a year. Any litigation or fighting could extend the timeline considerably.

How much does probate cost in Georgia?

Here’s an overview of the approximate costs of Georgia probate:

  • Court costs for various filing fees will total approximately $225.  
  • Attorney fees vary. Hourly fees for attorneys can range from $150 to $300 per hour. For a simple probate, where it does not look like fighting and litigation will occur, it’s probably reasonable to estimate attorney fees at a minimum of $2500. These fees are greatly reduced when you use EZ-probate and do probate on your own without an attorney. You can get started for free with our EZ-Probate questionnaire.
  • A fee will sometimes need to be paid to person managing the probate, which is usually a percentage of the probate estate, for example, 2%. (The fee is often waived.)
  • If an asset in question has an uncertain value and needs to be appraised (such as cars or antiques), you will want to be prepared to pay an appraisal fee.   
  • Depending on the state that the property is in, you may need to pay an estate tax. Georgia does not have a state estate tax. Furthermore, the federal estate tax only applies to multi-million dollar or billion dollar type estates and affects less than 1% of the country.

Want to get a head start on the probate process?

The first step towards getting a probate opened is completing our online questionnaire. If you have already started it, you can always go back and finish it.

If you have questions, schedule a free consultation today.