Out-of-State Probate: What You Need To Know

 

Speak with a trusted Probate Court lawyer in Cherokee County, Georgia.

What Is Out-of-State Probate? 

Do you need help navigating the out-of-state probate process in Georgia? Perigon Legal Services can help you. Call us today for more information.

Author: Stan Faulkner, Founder, Perigon Legal Services, LLC

Mr. Faulkner is an experienced counselor and litigator with 15 years of experience, having held bar licenses in four states (Mo, Il, Ct and Ga). Stan Faulkner uses this experience and focuses his skills in the pursuit of assisting individuals in probate (trust and estate) matters, guardianships and conservatorships, estate planning, business disputes and contract disputes. Published on November 06, 2023.

Probate is the court-supervised estate administration process that is often required after a person’s death. During the process, the probate court would appoint a person as a personal representative to secure the deceased’s (formally called decedent) estate, pay off any debts and taxes, and distribute the remaining assets to the decedent’s beneficiaries.

Usually, the process takes place at a probate court where the decedent lived before death. However, a unique issue arises when the decedent owns property outside their state of residence. In such circumstances, the decedent’s estate may need to go through probate at least twice: in the state of residence and in any other state where they had out-of-state property. This secondary probate process is known as out-of-state probate. 

The procedure for probate varies with each state. If you’ve recently lost a loved one who had assets in Georgia but lived outside the state, there’s a good chance the deceased’s Georgia estate would need to go through out-of-state probate. In that case, it is important that you’re familiar with Georgia’s out-of-state Probate Laws.

If you live outside Georgia, navigating the process from where you live could be difficult due to logistics reasons and because the laws in Georgia likely work differently than what you may be used to. In the circumstances, you may need to retain the services of a Probate Lawyer in Atlanta who can represent you throughout the process. That way, you only need to show up when it is absolutely necessary.

But in the meantime, we explain how the out-of-state probate process in Georgia works so you’ll know what to expect during the proceedings.

Navigating Out-of-State Probate: A Step-by-Step Guide

Facing out-of-state probate can seem daunting, but with a clear plan, the process becomes more manageable.

First, consult with a probate attorney experienced in multi-state matters to guide you through the specific requirements of each jurisdiction involved.

Next, gather all necessary documents, including the will, death certificate, and an inventory of the decedent’s out-of-state assets. Ensure you understand the timelines for filing in each state, as these can vary and impact the process.

Finally, communicate regularly with your attorney to stay informed about the progress of your case and any actions you need to take. This proactive approach can significantly reduce the stress and complexity of managing out-of-state probate issues.

How Probate in Georgia Works

Probate in Georgia is the process by which a deceased person’s will is authenticated and their assets distributed to the beneficiaries named under the will. The existence of a will is an essential requirement of the probate process. If the decedent died intestate, that is, without a will, then the probate process would not apply to the estate.

The probate process may take place in common form, solemn form, or both. These forms refer to the specific procedures adopted in probate cases. 

In common form probate, the validity of a will may be established by only one of the witnesses who signed the will when it was made. In contrast, solemn form probate requires that all the will’s beneficiaries and other witnesses are notified about the probate proceedings.

Both forms of probate have their merits and demerits. It is important to seek clarity and professional help from a skilled probate attorney before opting for either. They can help you understand each of them and determine which would offer the most benefits. 

When Is Out-of-State Probate Required in Georgia?

Out-of-state probate in Georgia is relevant to instances in which the decedent owned assets such as real estate in Georgia, was domiciled or had their permanent residence outside Georgia and had either a valid;

  • Foreign will, made in their place of domicile outside the U.S. 

  • Out-of-state will, that was made in a different U.S. state.

The essence of the out-of-state probate process is to allow the assets under such wills to be managed and distributed legally in the absence of the original owner.

Types of Out-of-State Probate in Georgia

Original probate

Under the Georgia Code, a foreign or out-of-state will may be admitted to solemn or common form probate as though it was originally made in Georgia. However, such a will must fulfill certain basic conditions;

  • It must meet the requirements for a valid will under Georgia state law.
  • It must not have been offered for probate in the place where it was made.
  • If it had been offered for probate where it was made, the person filing the petition must show that; 
    • No objection was filed against the probate application; or
    • If an objection was filed, it would not cause a denial of probate.

If the petition for original out-of-state probate succeeds, the court would appoint an executor who would be issued the probate order formally called letters testamentary. This court order empowers the executor to take charge of and administer the estate according to Georgia law and the terms of the will.  

Note that a petition for original probate would only be granted in Georgia as long as probate has not been issued or granted in a foreign or out-of-state court. If that has already happened, original probate would no longer be available, and you’ll need to pursue your case under the other kind of out-of-state probate: ancillary probate. 

Ancillary Probate

Ancillary probate is the process by which a previously probated foreign or out-of-state will may be admitted to probate in solemn form only.  

To begin the ancillary probate process, you’ll need to submit a certified copy of the will, the Probate Records from the original probate proceedings, and the official probate forms. 

However, to prevent multiple probate actions over the same estate, the law provides that ancillary probate will not be granted if a prior probate petition had been filed within the state and an objection was filed against the earlier petition.

Unlike a will admitted to original out-of-state probate, a will admitted to ancillary probate is still treated as a foreign or out-of-state will. Even though it is enforceable within Georgia, the validity and terms of the will are still governed by the laws of the place where it was made. So, if there is any question about how the will should be interpreted or its validity, Georgia law will not apply.

Can You Avoid Out-of-State Probate in Georgia? 

Generally, those who wish to avoid probate on behalf of their beneficiaries must take the appropriate steps and execute certain estate planning documents, such as trusts, before they pass on.

However, even after a person’s death, it may be possible to avoid the out-of-state probate process over a decedent’s estate in Georgia if ;

  • The will has been admitted to probate in its originating jurisdiction (where it was made).
  • No petition for ancillary probate has been granted or is pending within the state.
  • A qualified personal representative has been appointed and is serving under the laws of the place where the testator (maker of the will ) was domiciled
  • The personal representative is a U. S. Citizen. 

In such cases, Georgia law allows the personal representative to administer and manage the assets within the state without ancillary probate.

However, if anyone files a probate petition requesting ancillary probate over the decedent’s will, the personal representative’s powers would be suspended. They would no longer be able to act unless the court affirms their appointment.

Get Help Navigating Georgia’s Out-of-State Probate Process

The out-of-state probate process in Georgia could be complicated. But you don’t have to go through it alone.

At Perigon Legal Services, we understand the intricacies of Georgia’s probate laws and can help you navigate the probate court system without stress.

We have represented many clients in probate cases over the years. With our knowledge and experience, you can trust us to guide you safely through the process and steer your case toward the desired outcome.

Contact us today to get started. 

Comprehensive FAQ on the Probate Process

What Is Probate?

Probate is a legal process where a court oversees the distribution of a deceased person’s assets, ensuring debts are paid and assets are distributed according to the will or state law if there’s no will.

How Long Does the Probate Process Take?

The duration varies by state and the complexity of the estate. On average, it can take six months to two years.

Is Probate Necessary if There’s a Will?

Yes, having a will does not avoid probate; it guides the process. However, certain assets, like those held in a trust, may bypass probate.

Can Probate Be Avoided?

Yes, through proper estate planning, such as creating living trusts, designating beneficiaries on accounts, and owning property jointly, you can avoid or minimize probate.

What Happens if Someone Dies Without a Will?

The estate goes through intestate succession, where state laws determine how assets are distributed, typically to the closest relatives.

Are All Assets Subject to Probate?

No, assets like life insurance policies, retirement accounts with designated beneficiaries, and those held in a trust bypass probate.

What Are the Executor’s Responsibilities?

The executor, appointed by the will or court, manages the estate’s settlement process, including notifying beneficiaries, paying debts, and distributing assets.

How Can I Find out More About Specific State Probate Laws?

Consult a probate attorney in the state where the estate will be probated for detailed, state-specific advice and guidance.

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