Wednesday, November 22, 2023
After a death, most or all of the property owned by a deceased person (or decedent) is typically still in their name. The decedent’s next of kin, or the beneficiaries named in the will, might assume they automatically have the rights to sell or possess that property. But before they can do so, the estate usually needs to be probated—to go through the process of administration in probate court.
Administration settles the issues of title, legal distribution, and division between those who will inherit from the deceased. Georgia law allows some estates to avoid administration, but this requires court permission and prior planning.
The probate process takes place on the court’s time, and it can go slowly, perhaps taking over a year. Creating an estate plan can allow your family to access some or all of the resources they need without waiting for the court to act.
The Probate Estate
Anything that remains in the decedent’s name on their death is generally considered part of the probate estate. “Probate estate” or “probate assets” are terms for all the property that has to go through the administration process. This usually includes personal property like art, furniture, and jewelry; vehicles; bank accounts; investment accounts; and real estate owned alone or in common.
If someone dies unexpectedly without an estate plan, their loved ones may find their money and resources tied up in probate for months before they can begin to access them. Living trusts can keep property out of the probate estate, allowing for use during your lifetime while also allowing you to transfer after you pass away, without the court’s intervention. Certain types of ownership also allow an instant transfer at the time of death so that the property is never part of the probate estate.
Joint tenancy with the right of survivorship is a common way for two or more people to own real estate. When one of the joint tenants dies, that person’s interest automatically passes to the other tenants and never becomes part of their probate estate. Bank accounts, retirement accounts, and securities often offer a payable-on-death (POD) option. When an account holder names a beneficiary, that person will take ownership immediately on the date of death, bypassing the need for probate.
Where There Is No Will
When someone dies without a will, their property passes to their heirs—their next of kin. State law sets out which family members may inherit under various circumstances and how much they would take. This is called intestate succession.
Sometimes it is simple. For example, when a married person dies without children, their spouse inherits the whole estate. But matters can quickly grow complex, both in law and in real life. Once a decedent has a spouse or descendants, there is no legal provision for surviving parents, grandparents, or siblings, no matter how close they may have been. This can quickly lead to tense and painful situations, especially where the assets are not in cash or the family relationships were already rocky.
However, if they can act together, the heirs may petition the probate court for an order declaring that no administration is necessary. The court might grant this order if:
If the court is satisfied that all the heirs have consented, and no creditors object, the court will enter an order allowing title to the estate to pass according to the law or the heirs’ agreement.
Wills and Probate Administration
When a decedent dies with a will—or dies without one, leaving an estate that needs formal administration—the probate process must begin. The first step is a petition for letters of administration, filed in the county court where the decedent lived. This asks the court to name a personal representative for the estate—also known as an executor (if there is a will) or an administrator (if there is none).
The personal representative has to manage and account for the estate. Their duties include:
Much of the probate process has to move on the court’s schedule, rather than the family’s. Without conflicts or objections, the process can take a year or less, but that cannot be guaranteed. Common form probate—which does not require formal notice to the heirs—may take less initial work, but an interested party may intervene for up to four years afterward, upsetting everyone’s lives.
How to Move Forward
If you are in Georgia—or your deceased loved one lived in Georgia—we want to talk to you about your estate needs. Attorney Mike Bascom is experienced in handling:
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Author, CEO and Founder of Bascom Law, P.C.
Attorney Mike Bascom devotes his practice to estate planning. He helps individuals and families achieve peace of mind by leaving their wealth to whomever they want, whenever they want, in the way they want, all with the least amount of government interference and taxation.