Everything You Need to Know About Settling an Estate in Georgia
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Settling an Estate in the State of Georgia: What Is Probate?
Settling a Georgia estate shouldn’t be difficult, especially with the advice of a good estate planning attorney. Learn more in our guide.
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 December 25, 2020.
Settling a Georgia estate for some can be a complicated and confusing process. Probate is the main way in which the court supervises an estate gets settled. Probate provides the surviving spouse or another close relative the authority to collect the departed individual’s personal property, pay financial obligations, estate tax and other taxes, as well as ultimately distribute the deceased person’s assets to individuals who will inherit them.
The first thing that has to occur in Georgia is to appoint an executor or administrator to represent the estate. We call that individual an administrator if the deceased person had no will and an executor if there is a will. That individual is also called a Personal representative.
In order to have an executor or administrator appointed, a petition has to be filed with the Georgia probate court. With that petition, you are asking the court to appoint an executor or administrator formally. This process is necessary even when a deceased person has appointed an executor in their will. Then, the Probate court will issue a document called Letters Testamentary in case the executor was named in the deceased person’s will, or Letters of Administration – in case a court has appointed an administrator.
In cases involving the Georgia probate process, you should retain an attorney who is experienced in probate law as well as estate planning. They can offer legal advice and determine the best way to proceed with your probate case. Stan Faulkner, lead counsel at Perigon Legal Services with over 18 years of experience, can do just that. His law firm is dedicated to providing legal help for families, individuals, and small businesses in Georgia.
How Does Georgia Probate Process Work?
There are two types of probate in the state of Georgia: Solemn Form and Common Form Probate. For Solemn Form Probate, all heirs have to be notified, and there’s a hearing where a Personal representative is appointed. Common Form probate doesn’t require notice, but it takes four years for its results to become binding.
After the Probate court issues Letters Testamentary or Letters of Administration, the Representative of the estate has to publish a notice of the probate process in a newspaper where the decedent lived. That has to be done within 60 days, and the purpose of this notice is to inform potential creditors. Creditors have three months to come forward and make a formal claim to the estate.
This is the second phase of settling the estate, and it is considered the longest of all three phases. Some examples of work that has to be done in this phase include the following:
- Making a detailed inventory of estate assets
- Opening a bank account for the estate
- Identifying all heirs and beneficiaries of the estate
- Determining what to do with non-cash estate property
Handling Estate Property, Taxes, and Debts
Estate property that has to go through probate doesn’t have to include only cash; other assets can also be probate assets. For instance, real estate, a car, bank accounts, brokerage accounts, life insurance policies payable to the estate, as well as personal belongings, can be probate assets.
If you want to sell probate assets to pay debts, you’ll have to petition the Probate court for permission, especially in case you want to sell real estate.
The estate’s Personal representative also has to identify all creditors and pay all outstanding debts and taxes. In addition, he or she also has to file federal and state income tax returns for the decedent.
If the estate doesn’t have enough money to pay all debts, claims have to be prioritized under Georgia state law. Under Georgia code, year’s support to the family of the decedent is among necessary expenses. That means children younger than 18 and the surviving spouse are entitled to receive support for 12 months after the descendant’s death.
Next, the Personal representative has to settle funeral expenses, costs of the probate proceeding, cost of the decedent’s last illness, and taxes. This list isn’t final, so you may want to think about consulting a qualified lawyer before you start writing checks. A knowledgeable attorney like Stan Faulkner can help navigate the probate process easily.
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How Long Does an Executor Have to Settle an Estate in Georgia Probate Court?
The last phase of settling the estate is the distribution and discharge of the property and closing the Georgia estate. After the Personal representative has made sure tax returns are filed and all the taxes and debts are paid, he or she can distribute the remaining assets. That way, heirs or beneficiaries can receive their inheritance.
If there is a will, the Personal representative must follow the decedent’s instructions. If there is no will, Georgia Inheritance laws must be followed. Under these laws, the decedent’s closest relatives, such as a surviving spouse and children, inherit the remaining assets equally.
After that, the executor or administrator must file a Petition for Discharge with the Probate court, requesting to be relieved of their duties. However, the Probate court has to notify all heirs or beneficiaries who did not sign formal consent releasing the executor or administrator from legal responsibility. That gives them a chance to express their concerns or contest Georgia probate.
But, if the Probate court determines that all the duties are properly fulfilled, the Petition for Discharge will be granted. At that point, Georgia’s estate is considered closed.
The whole process of settling the estate can last, on average, from 12 to 18 months, depending on the size of the estate. However, every probate is different, making it hard to tell how long it will last. There are several issues that can slow down the process, such as challenging the will or a large number of beneficiaries.
How Much Can an Executor of a Georgia Estate get Paid?
Depending on what’s directed in the will, the executor can serve with or without getting paid. If the will does not mention his or her commission, they will be compensated according to Georgia probate law.
The law states an executor is entitled to 2.5% commission of all money brought and 2.5% percent of all money paid or distributed out of an estate. They may also get 10% of any interest that the estate has earned, as well as up to 3% of the value of non-money assets. That being said, calculating the exact amount of executor fees could be a challenging task.
The process of settling a Georgia estate can be a complex one. As wills and probate are both specialized legal fields, retaining an attorney who is skilled in all areas of business law as well can be quite beneficial.
How to Close an Estate in Georgia
Not all estates have to go through probate. If an estate is considered small, it doesn’t need a court’s supervision to be settled. In addition, not all estate assets are required to go through the probate court process. If the deceased person owned assets or properties only in his or her name, these assets must go through probate.
However, some assets can be transferred automatically to their new owners. These assets include:
- Joint tenancy assets
- Assets held in a revocable living trust
- Beneficiary Designations assets
Beneficiary Designations assets include, for example, life insurance policies payable to the beneficiary, as well as bank accounts or retirement accounts for which the decedent named a beneficiary outside of the will.
If the will exists, all the heirs agree on how to distribute estate assets, and there are no creditors, the Georgia Probate court can state that probate is not necessary. But, if heirs or beneficiaries do not agree or the estate has creditors, the probate process will be required. Stan Faulkner at Perigon Legal Services in Marietta, GA, can offer you guidance to secure your estate for your beneficiaries and loved ones.
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Is There a Time Limit on Settling a Georgia Estate?
Under Georgia law, there is no time limit on settling an estate. After your loved one passes away, there is no set number of days or months to open an estate. The usual time frame is from two weeks to as long as six months. From a legal standpoint, you can wait longer than that, but it can cause other issues and problems.
However, if you have an original will of a deceased person, you have a legal obligation to take the will to the appropriate probate court at some point. If you want to make sure your estate safely transfers to your heirs or beneficiaries when you pass away, and verify your will is in order, consult with a reputable last will and testament lawyer in Georgia. Stan Faulkner at Perigon Legal Services can help not only when drawing the will but also by representing beneficiaries during the probate process. Contact us today and schedule a consultation.
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