Wills can be more complicated than people realize. It’s important to write them carefully, but it’s also important to probate the will (or file it in probate court). Here are some considerations when planning a will in Georgia and why it’s essential to file it. Note: In Georgia, the law requires wills to be filed but not always probated—those are two different processes.
Differences Between Filing a Will and Probating a Will
The concepts of filing a will in probate and probating a will sound similar, but in fact, they’re different. It comes down to what kinds of assets are included in the will.
- Probate assets. These are assets that the court often reviews before they’re distributed and include things like real estate and real estate interests and individually owned bank accounts, some types of investment accounts, among others.
- Non-probate assets. These are assets that don’t have to go through probate court and include things like insurance policies and retirement accounts. Many of those types of accounts already designate beneficiaries if the person who owns them dies. That’s why they don’t have to go through probate.
If someone’s estate has only non-probate assets, filing the will is likely all that needs to be done to stay legal within Georgia. But if there are probate assets involved, the will should be both filed and probated.
Why Should a Will Be Probated?
Probating a will means it goes through a legal process to name someone the executor or personal representative for that will. The executor or representative will be responsible for overseeing the will when the person whose estate it manages passes away. Probate officially recognizes the person accountable for carrying out the estate’s wishes and allows them to gather the assets for the estate, make sure any debts and taxes are paid in full, and divvy up the remaining assets to the people listed in the will.
What Happens if the Will Is Not Filed?
Because it’s a requirement in Georgia under the law, not filing the will means the executor or person with the will in their possession could be held in contempt. They could also be fined or even imprisoned, and they could face civil or criminal charges.
In addition, the heirs may sue the executor for the things they expect to inherit from the will. Suppose the executor deliberately doesn’t file the will because it’s in their own best financial interests not to. In that case, that could be considered intent to conceal a will, which can result in criminal charges.
Let Me Advise You
If you or someone you know needs to begin estate planning and draft a will, call me at 770-889-3911.