Probate is the legal process that takes place after someone dies so that an orderly and legal distribution of one’s assets can occur according to their wishes.
Stewart Melvin & Frost attorney Eric Wilborn, who specializes in trusts and estates, will help us better understand the probate process.
Question: Eric, will you start by giving us an overview of the probate process?
Eric: As in every case in Georgia, the probate process begins with filing a petition. Once a petition is filed, the court will open the estate and appoint a personal representative. If a will exists and names an executor, that person will appointed to manage the estate. If a person dies without a Will, an administrator of the Will is appointed by a judge.
Next, creditors of the estate, if any, are officially notified of the death through a publication in the legal organ of the county of the decedent. The role of the executor or personal administrator is to determine, protect and manage the deceased’s assets during the probate process, and fulfill the wishes of the descendant contained in the Will, or to distribute the assets according to statute.
Question: Will you give us an example of what an executor might have to do to manage the deceased’s assets?
Eric: The executor may have to sell property or securities to meet the debt requirements and bequests.
For example, if the Will makes a number of cash bequests but your estate consists mostly of real estate, the property might have to be appraised and sold to produce the required cash needed to make the bequest, unless the beneficiaries will accept, or a judge allows, a distribution in kind. Or, if there are many outstanding debts, the executor might have to sell some of the property to pay them.
The court will grant the executor the power to pay the deceased’s debts and taxes and divide the rest among the people or organizations named in their Will or, if there is no will, according to the statute. After all debts have been paid and the property has been distributed, the executor or personal representative requests to be discharged of his/her duty.
It can take several months or, in some cases, years to properly administer an estate.
Question: If there is no Will and the court has to name an administrator, how does that work?
Eric:If there isn’t a Will, or the Will fails to name an executor, the Probate Court, with input from the surviving family members, names an administrator to handle the process.
Most often, the job goes to the closest capable relative or the person who inherits the bulk of the deceased’s assets. The Probate Court manages how the estate is administered and processed through the legal system. That includes validation of the Will and enforcing provisions of the Will.
Question: Do executors retain a probate attorney for assistance during the process?
Eric: The probate process does involve paperwork and court appearances so it can be helpful to engage a lawyer to handle the matters for you as they will be familiar with the required court documents, who needs to sign them, the timing of the various steps, etc. The law prohibits the staff of the Probate Court from giving legal advice or assistance.
Sometimes, decedents will name their probate attorney as the executor of the estate. If this is the case, the probate lawyer also manages the physical distribution of assets. This can involve helping to change the title on property, or helping to move assets into the name of the person who inherited them.
Of course, the attorney and executor of a person’s will have an ethical and fiduciary duty to all the beneficiaries by honoring and carrying out the wishes of the decedent as expressed in his or her Will.