Estate Planning: Probate

Attorneys to help process a will after death.Probate is the process by which your property and assets are distributed and your debts and taxes are paid after you pass. It can be a difficult process to navigate, even if the will is straightforward and uncontested. If you have been named the executor of a will, it is important to know when probate is necessary, who all the players are, and how the assets, taxes, and debts will need to be handled. Likewise, if you are the beneficiary or heir to an estate, it is important to understand what probate is so that you know what your rights and obligations will be during the process.


Is probate necessary?

Probate will almost always be necessary, regardless of whether or not the deceased had a will. The exact process that will occur will depend on a number of factors, including whether there is a will, whether the will is contested, and whether there are any debts that will need to be paid. In some cases, the probate process can be simple – even if there is no valid will. If, for example, there are no debts to be paid, and the decedent’s heirs have agreed to how all property will be divided, the heirs can petition to skip the formal administration of the estate. In other cases, however, it may take extensive dealings with the courts, debtors, and heirs, in order to get through the probate process.


What is the difference between between an executor, administrator, heir, and beneficiary?

In Georgia, the person in charge of overseeing the administration of an estate is known as the “Personal Representative.” This person is responsible for identifying and handling the decedent’s property and assets, maintaining estate accounts, paying any debts or taxes owed by the estate, and distributing property to those set to inherit it. If the Personal Representative is appointed by a will, they are known as the “Executor” of that will. If, however, there is no will, an “Administrator” will be appointed by the court. The Administrator is generally a family member who petitions the court to be appointed to the position.


A “beneficiary” and an “heir” are essentially the same thing. Both are individuals who are entitled to receive assets or property from the estate of another person. The term “beneficiary” is generally used to describe an individual named in a will or trust as someone who will inherit under that will or trust. The term “heir,” on the other hand, is generally used to describe someone who will inherit from another by law, whether or not there is a will. Heirs generally include the spouse and children of the deceased person, whereas a beneficiary can be can be anyone who is named in the will or trust.


How does my stuff get distributed?

Georgia law has special provisions dictating how debts of the estate are paid, and how assets distributed. First, the spouse and children under 18 of the decedent are entitled to receive financial support for up to one year. This takes precedence over everything else, and is generally paid out in one lump sum from the cash or assets of the estate. Generally speaking, creditors who made valid claims in probate, as well as any taxes that may be owed, are paid next from the remaining cash or assets in the estate. Anything left in the estate after the creditors and taxes are paid will be distributed according to the terms of the will or, if there is no will, according to the terms of Georgia law.