Below is a list of common proceeding types used in probate court for estate administration. Click on a topic to move the page directly to that section.
There are a number of different proceedings filed in the Probate Court related to estate administration. Upon the death of a Georgia resident or a non-resident owning property in the State of Georgia, you may file proceedings in the Probate Court of the county of the decedent's residence in Georgia or in the county where property of a non-resident is located. We shall describe the usual, initial proceedings in the sections that follow. For each proceeding described, there is a standard form, which the Court shall provide to any petitioner. We suggest that you discuss the matters of concern with an attorney who practices probate or estate law. An attorney can assist you in determining which proceeding is the most appropriate for your particular situation. Very often, there are other matters (e.g., tax returns, reparation of deeds, title transfers, benefit claims, creditor notices, debtor demands, etc.), which also may make it appropriate or necessary to seek the services of an attorney. If you proceed without an attorney, it will be your responsibility to determine or select the proceeding appropriate for your situation.
The Probate Court Staff may not make the determination or selection for you, since to do so may constitute the unauthorized practice of law, a misdemeanor crime under Georgia law. Neither the Court nor the County can accept responsibility for inappropriate advice given by the Staff. The Staff have a directive to refrain from giving any kind of advice in these matters. It is also your responsibility to complete all forms properly, which must be either typed or legibly printed. As directed, the Staff shall not perform clerical tasks for the public, but they are prepared to answer basic questions about the standard forms and about any deadlines for the filing proceedings. They may schedule uncontested hearings and tell you how the Court schedules other matters.
The law requires the Probate Judge to remain impartial to all parties. The Judge must treat every case as though it were contestable. Therefore, the Judge shall not advise you on which proceeding is most appropriate for your case. The law prohibits the Judge from discussing the facts or evidence in any contested case with a party unless all parties are present. You should not ask to discuss your case privately with the Judge. He shall terminate any discussion that appears to require the presence of others. Top of Page
Solemn Form ProbateProcedures Available for Decedent's Estate When There Is A Will
This procedure requires notice to all heirs and becomes binding upon all parties immediately upon entry of the final order. "Heirs" are people who would inherit the estate if there were no lawful Will. Heirs may or may not be beneficiaries under the Will. The notice requires anyone having a legal cause to object to or contest the alleged Will to file the objection or contest before a certain deadline. You must file the original Will with the petition, and you must provide proof of the proper execution of the Will through a self-proving affidavit, Interrogatories or Proof of Witness. The Court shall ensure the service of notice and that recipient heirs acknowledge service. The Court shall appoint a guardian-ad-litem for each minor or incapacitated heir.
Top of Page
Solemn Form ProbateLetters of Administration with Will Annexed
If there is a Will but the named Executor is either unable or unwilling to serve, an Administrator C.T.A (with Will annexed) must be appointed. Any nominated Executor still living must sign a declination, or there must be testimony that the Executor is unable to serve. A majority of the beneficiaries may select the Administrator C.T.A. The Court will appoint a guardian-ad-litem for each minor or incapacitated heir. Top of Page
Common Form Probate
This procedure may be done without notice to heirs but does not become binding for four years after the appointment of the Executor. The requirements of providing the original Will and proof of proper execution are the same as with the Solemn Form Probate. Heirs and others may file an objection or contest at any time up to four years after common form probate. Top of Page
Will Filed Not For Probate
If there is no property to pass under the Will, probate is not necessary. However, the decedent must have filed the Will with the Probate Court. Real estate, unlike joint bank accounts, may not automatically pass to a surviving co-owner. If the only property in the estate is an automobile, title may be transferable through the Tag Agent without probate being necessary. There is no cost to file a Will not for probate. Top of Page
Permanent AdministrationWhen There Is No Will
This procedure requires notice to all heirs. A surviving spouse or sole heir is entitled to serve as administrator, unless disqualified; otherwise, the person selected by a majority of the heirs is entitled to serve, unless disqualified. Administrators must post bond and file inventories and returns, unless all heirs consent to a waiver of those requirements. If all heirs consent, the administrator stands to obtain additional powers and authority. Guardians of minor or incapacitated adult heirs may acknowledge service, consent to selection and consent to waive requirements, provided the guardian is not the petitioner. Top of Page
Notice to the heirs is not required, but a majority of the heirs may select the Temporary Administrator. Powers are limited to collecting and preserving the assets of the decedent, and the Court may appoint a Temporary Administrator upon any showing of necessity or appropriateness. Without a special court order, there shall be no expenditures or disbursements made. Temporary administrators must post bond and file inventories and returns. Guardians of minor or incapacitated adult heirs may consent to selection, provided the guardian is not the petitioner. Top of Page
No Administration Necessary
If all debts of the decedent have been paid (or if all creditors consent or fail to object after notice), if there is no other need for formal administration, and if the heirs have all agreed on how the estate shall be divided, this proceeding may be filed. All heirs must sign an agreement disposing of the entire estate. Guardians of minor or incapacitated adult heirs may execute the agreement. You must give legal notice of the filing to creditors who have not consented in writing. Top of Page
Year's SupportWhether Or Not There Is A Will
Use this proceeding to file on behalf of minor children or as the surviving spouse of the decedent. This is a petition to award specified property to the surviving spouse or minor children. Provision of notice to all “interested persons” is required. Property awarded as Year's Support is free of all unsecured debts of the estate and takes precedence over any disposition by Will. The award of the property as Year’s Support divests the lien of certain ad valorem taxes on real estate. Top of Page
Petition to Enter Safe Deposit Box
File this proceeding if there is a perceived likelihood that a Will is in a safe deposit box. This petition authorizes the bank to open and examine the contents of the box in the presence of the petitioner. If the safe deposit box contains a Will, the bank must deliver it directly to the Probate Court. Named beneficiaries may directly receive insurance policies. The petitioner may receive only burial instructions and any deed to a burial plot. Other property must remain in the box until an Executor or Administrator is appointed. Top of Page
Administrator The party appointed by a probate court to distribute the estate of someone who dies without a will or without naming an executor.
Administrator With Will Annexed The person, other than an executor, who administers a decedent's estate when there is a will, but the will fails to name an executor or the named executor cannot or will not serve.
Decedent Someone who is no longer alive.
Executor A person appointed by a testator to carry out the terms of the will.
Heir A person who is entitled by law (rules of descent and distribution) or by the terms of a will to inherit the estate of another. “Heir” does not mean the same thing as “beneficiary,” although an heir may also be a beneficiary.
Intestate Having made no legally valid will before death or not disposed of by a legal will.
Letters Testamentary/Letters of Administration The official document issued by the Probate Court evidencing the authority of an executor or an administrator.
Personal Representative Any executor, administrator guardian or trustee, but not a temporary administrator.
Probate The act of proving that an instrument purporting to be a will was signed and executed in accord with legal requirements. Probate is also a judicial certificate saying that a will is genuine and conferring on the executors the power to administer the estate.
Probate Court A court having jurisdiction over the probate of wills and the administration of estates.
Testator A person who makes a will.
Will A legal document declaring a person’s wishes regarding the disposal of their property when they die.Top of Page