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Wills and Estates – Creation and Probation

Davis Law creates both simple and complex wills for our cliental.  When someone dies with a Will the probation process is called Testate Succession, but when someone dies without a Will the process is called Intestate Succession.  The below information provides basic information for Testate and Intestate Succession.  For a consultation about your specific situation, Davis Law can be reached at 404.901.2500 and 770.922.8500, or send us a message from our website - Contact Davis Law.

Testate Succession

There are a number of different proceedings which may be filed in the Probate court following the death of a Georgia resident or a non-resident owning property in the State of Georgia. Proceedings are filed 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.

Here is a list of common procedures for Testate Probation:

SOLEMN FORM PROBATE

This procedure requires notice to all heirs and becomes binding upon all parties immediately upon entry of the final order. "Heirs" are those persons 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. The original Will must be filed with the petition, and proof of the proper execution of the will must be provided by either a self-proving affidavit, Interrogatories or Proof of Witness. All heirs must be duly served or must acknowledge service. The Court will appoint a guardian-ad-litem for each minor or incapacitated heir.

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.

PROBATE OF WILL IN SOLEMN FORM/ LETTERS 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.

WILL FILED NOT FOR PROBATE

If there is no property to pass under the Will, probate is not necessary. However, the Will of the decedent must be filed 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.

Intestate Succession - No Last Will and Testament

If a decedent (legal term for a deceased individual) dies without a Will in the State of Georgia, the statutory laws of Intestate Succession will determine how your estate is distributed.  Intestate Succession law has fixed  rules which applies to different situations.  Some examples of corresponding rules are discussed below.

Example One:  Decedent is survived by a spouse and no descendants (legal term for surviving children or descendants of decedent's children).  Under these circumstances, the surviving spouse inherits the decedent's entire estate. [O.C.G.A. 53-2-1(c)(1)]

Example Two:  Decedent is survived by a spouse and descendants.  Under these circumstances, the surviving spouse shares equally with the children, unless the shares exceed three.  If there are more than three shares (one spouse and two children), the spouse takes one-third of the estate and the share two-thirds of the estate.  The surviving spouse and children take per capita (equally) and descendants of children take per stirpes (by representation).  [O.C.G.A. 53-2-1(c)(1)]

Here is a list of common procedures for Intestacy:

PERMANENT ADMINISTRATION

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 may be given 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.

TEMPORARY ADMINISTRATION

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. No expenditures or disbursements may be made without a special court order. 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.

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 will 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. Creditors who have not consented in writing must be given legal notice of the filing.

Davis Law provides expert advice and guidance for all your Estate Planning and Probation matters.  We can be reached at 404.901.2500 and 770.922.8500, or send us a message from our website - Contact Davis Law.