An Introduction to Probate in Georgia

probateFollowing the death of a Georgia resident, or of someone who owns property in Georgia, the law has a number of different petitions which may need to be filed in the probate court of the county of the decedent’s domicile in order to begin the probate process.

If the decedent left a will, the original will must be filed with the court in order to ultimately distribute the decedent’s assets according to the decedent’s wishes. If the decedent died without a will (i.e., intestate), the probate law of the decedent’s domicile will determine how the estate will be divided.

A personal representative of the estate will be named. If there is a will, the personal representative is called the executor. If there is no will, the named person is called an administrator.

Ultimately, the probate court will issue a document called the Letters Testamentary or Letters of Administration to the personal representative, giving the executor or administrator the authority to act on behalf of the estate.

The personal representative has a responsibility, specifically a fiduciary duty, to comply with the obligations imposed by the court. The personal representative, whether executor or administrator, has a duty to the heirs to preserve their assets and to distribute those assets as instructed.

What Are the Duties of an Executor or Administrator in Georgia?

As the personal representative of the estate, you have a fiduciary duty to the heirs to preserve their assets and to comply with the wishes of the decedent. The court requires you to take an oath, swearing that you will comply with the current Georgia probate law in administering the estate.

If you fail to fulfill your duties as the personal representative, or breach your fiduciary responsibilities, you may be held personally liable for any monetary losses.

The estate personal representative is legally responsible for:

  • Locating, identifying, and keeping safe all the decedent’s assets.
  • Paying all the debts of the estate. Notice of the death must be published within 60 days of issuance of Letters Testamentary or Letters of Administration so that creditors of the decedent are made aware of the death, and may file a claim against the estate.
  • Sell real estate if required to pay debts or to distribute assets. This may require a specific court order to authorize you to initiate and complete this transaction.
  • Some state and federal tax returns may need to be filed. This may become complicated if there is a surviving spouse, or if the estate earns money between the date of the death and the date of distribution of assets.
  • Distributing the assets to the heirs according to the wishes of the decedent, or by the requirements of state law.
  • Filing required reports with the probate court. This includes, among other reports, an inventory of all the assets in the estate and how they are eventually distributed.
  • Filing a Petition for Discharge after all the tasks have been completed and the probate proceedings are ready to be closed.

These personal representative duties are not to be taken lightly. Often, legal counsel is needed to guide the personal representative through the process.

Atlanta probate and estates lawyer Nancy Ghertner can help you sort out all the paperwork and be at your side in probate court. Call Nancy at (404) 980-9096 to set up a consultation at her Sandy Springs law office located on Sandy Springs Circle.

What To Do With The Marital Home In A Divorce

marital home and divorceWhen it comes to dividing assets and liabilities between two spouses during their divorce process,Georgia is an equitable distribution state. This means the division is one that the family law court considers is fair, not necessarily equal.This includes the marital home which is often the most financially valuable asset the couple owns together. When both parties have an emotional and sentimental attitude toward the home and children are involved who still live there and do not want to move, what to do with the marital home may be complicated.

Although there are several possible solutions, they all begin with having the property appraised to determine its fair market value. Then, any debts owed relevant to the property, like the mortgage and taxes, are deducted to determine the equity, which is the amount that needs to be divided.

Selling the home to a third party

The easiest solution seems to be to sell the home to a third party. When the sale goes through, the amount will be distributed by the court under the principles of equitable distribution. One party may receive more of the home equity than the other after the court considers all relevant factors to a fair distribution.

One party buys out the equity interest in the property from the other

Either party can buy out the interest of the other based on the amount of equity in the home. The home will likely need to be refinanced which provides for the deed to the home to be placed in the name of the buying spouse, removes the selling spouse from liability and debt that comes with being a joint owner and provides the money to the other spouse for the buy-out.

Delayed distribution

When there are minor children and the court finds it would be in their best interest to continue living in the home, Georgia courts may order a delayed distribution of the equity of the home. The court may establish a timeline for the property to be sold. For example, the court may order the house to be sold when the youngest child graduates from high school or reaches the age of 18.

The court will consider all relevant factors and determine whether or not the party that will not be living in the marital home will have an obligation to pay for any of the expenses for the property, such as the mortgage, maintenance or taxes.