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, probate law of the decedent’s domicile will determine how the estate will be divided.

There will need to be named a personal representative of the estate. If there is a will, that person is called the executor. If there is no will, that person is called an administrator. Ultimately, the probate court will issue a document to that personal representative, Letters Testamentary or Letters of Administration, as the case may be, giving the named representative the authority to act on behalf of the estate.

The personal representative has a duty, 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.

Role of the personal representative

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 law in administering the estate. If you fail to fulfill your duties as the personal representative, or breach your fiduciary duties, you may be held personally liable for any losses. An overview of your obligations includes:

  • 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 do this.
  • 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 distribution of the 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 duties are not to be taken lightly. Often, legal counsel is needed to guide the personal representative through the process.

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