What Actually Happens During The Probate Process?
Probate is basically the task of figuring out a deceased’s persons assets and debts, and taking care of those according to their will or, if they died without a will, according to law. It gets more complicated when someone wants to contest that will as being invalid for some reason, such as it being forged, or being done when the person was mentally incompetent, or being the product of undue coercion. It also gets complicated when there are a lot of debts or claims against the estate, or when there are a lot of assets and people who want to fight over them, whether they have good reason to or not.
An important thing to remember and why I always recommend having a will is that if you do not have a will (or a trust) that addresses everything, your property will pass according to the laws of intestacy. For example, if you are married when you die but have no will, your spouse does not automatically get everything. If you have children, your spouse has to split everything equally with your children (except that the spouse gets no less than one-third).
Further complicating the picture is a concept known as “years support,” whereby in Georgia, a surviving spouse or children can seek to be awarded assets and/or monies for what the court deems appropriate to support them for a year. This is an important provision within Georgia law that you should discuss with an attorney – sometimes it is possible, for example, to get a Probate Court to award a home property as the “year’s support” and this can allow the spouse to avoid having to pay property taxes on that property for one year.
So, if someone dies with a will, whoever that person nominates in their will to be the executor of the estate is supposed to file a petition to probate the will. So long as no one contests it, the will is admitted to probate and they will be appointed executor. If someone dies without a will, then anyone, but usually a family member, can file a petition with the probate court to be appointed the administrator of the estate. And, so long as no one opposes their request, they will be appointed the administrator.
Whether you are an executor under a will or an administrator operating without a will, the process is pretty much the same from there on, once you are appointed.
A notice will be published in the newspaper for any creditors who have claims to make against the estate to file them. (OCGA § 53-7-41). Meanwhile, the executor or administrator should figure out what assets the estate has and prepare an inventory of all those assets. They should also figure out what debts the deceased had that the estate might be responsible for. Once the period of time for others to file any claims they might have against the estate passes (3 months from publication of the notice), then the executor/administrator can address the claims and debts, and they must do so in the order of priority provided for by the law (OCGA § 53-7-40). Hopefully there are more assets than debts,
What Is The Standard Timeline For A Probate Case?
The typical probate case takes 6-18 months, and the more complicated ones can unfortunately go on for 2-3 years. Where relatives are fighting incessantly, I have seen a couple of cases go on for 6-8 years. These are the extreme cases, but it shows that when family members cannot get along, and with the appeals processes, it can indeed go on for years.
From the date you file and serve your petition with the probate court, people generally have ten days to object. If you have to publish notification, it is a longer period. Once you are appointed executor or administrator, you have to run a publication of notice to creditors and debtors for a month, after which they have three months to file any claims against the estate. Then the executor or administrator can begin handling or paying claims as appropriate, and then distributing what is left according to the terms of the will or according to law if no will. Sometimes claims have to be fought over or litigated. Sometimes there is property or assets that have to be sold because they cannot be easily divided. So those factors can add time.
OCGA § 53-7-41: The personal representative shall be allowed six months from the date of the qualification of the first personal representative to serve in which to ascertain the condition of the estate. Every personal representative shall, within 60 days from the date of qualification, publish a notice directed generally to all of the creditors of the estate to render an account of their demands. The notice shall be published once a week for four weeks in the official newspaper of the county in which the personal representative qualified. Creditors who fail to give notice of claims within three months from the date of publication of the personal representative’s last notice shall lose all rights to an equal participation with creditors of equal priority to whom distribution is made before notice of such claims is brought to the personal representative, and they may not hold the personal representative liable for a misappropriation of the funds. If, however, there are assets in the hands of the personal representative sufficient to pay such debts and if no claims of greater priority are unpaid, the assets shall be thus appropriated notwithstanding failure to give notice.
OCGA § 53-7-40: Unless otherwise provided by law, all property of the estate, both real and personal, shall be liable for the payment of claims against the estate in the following order:
(1) Year’s support for the family;
(2) Funeral expenses, whether or not the decedent leaves a surviving spouse, in an amount which corresponds with the circumstances of the decedent in life. If the estate is solvent, the personal representative is authorized to provide a suitable protection for the grave;
(3) Other necessary expenses of administration;
(4) Reasonable expenses of the decedent’s last illness;
(5) Unpaid taxes or other debts due the state or the United States;
(6) Judgments, secured interests, and other liens created during the lifetime of the decedent, to be paid according to their priority of lien. Secured interests and other liens on specific property shall be preferred only to the extent of such property; and
(7) All other claims.
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