While not required, it is strongly advisable to have an attorney to probate a will or administer an estate, especially if real estate or children are involved.
If a person passes away with a will, the will must be probated in order for it to become valid and for it to control. The last will written will typically prevail (although there may be circumstances where the last will does not control, such as in the event of the accusation of coercion or incapacity of the testator). If all heirs at law sign off on the paperwork, the will can be probated as an uncontested probating of the will. Because it only takes one heir to refuse to sign to create a contested situation, it is highly recommended that the person named as executor in the will speak to the family before beginning the court process.
If a person passes away without a will, Georgia law will determine who will receive what portion of the estate. This will be determined based on a priority set out in the law where a spouse, children, grandchildren, and other family members are considered. Rather than probating a will, one puts the estate into the administration of the court. One or more of the heirs of the estate may petition to become the administrator of the estate, but only one will be chosen to handle the affairs of the estate.
Debts are not inherited, but they must be paid out of the estate before the proceeds are issued to the heirs. For this reason, the Court will often require an executor or administrator to secure a bond prior to taking on duties. Our attorneys can get you in contact with the appropriate entities to secure this bond.
An exception to the rule that debts must be paid out of the estate is the option of seeking a year’s support for a spouse. A spouse can request that one year’s worth of support be taken from the estate before any money passes to creditors. This year’s support comes with some advantages and drawbacks that are best discussed on a case-by-case basis with an attorney.
If you are faced with questions about what to do after the death of a loved one, I will be able to go over the proper procedures with you and discuss your options. To set up a consultation with me about probate issues, call 770-980-9096