Probate and Administration

When someone passes away, their estate must go through either probate or administration.  This is the legal process of setting their affairs in order and passing along assets and children.  

Administration:  Administration of an estate is the filing with the Probate court notice that someone’s affairs need to be put in order, but that they did not have a will.  If someone passes without a will, Georgia has a detailed schedule of who would stand in line to inherit assets.  Hearings would be held if there was a dispute as to asset division or child custody.  Without a will, the process often takes a little longer and costs a little more with an attorney.  It also costs more in that a bond is required (insurance that the person handling the estate (the administrator) must pay for in order to be the administrator.  The alternative is to ask the Court for the county administrator to be appointed, but that administrator is still paid out of the proceeds of the estate.  It is often helpful to have an attorney straighten out an estate without a will.

Probate:  Similarly, an attorney can streamline the filing of an estate with a will, called probate.  When a will goes through probate, it often waives bond and other restrictions.  The will also allows the Court to fast track an estate through the process.  Often, all heirs sign papers and the estate is quickly taken care of.  

Disputes:  Disputes arise for multiple reasons.  The two most common are that the will is not valid or that the administrator/executor is not fulfilling their duty in administering the estate.

Wills can be shown to be invalid through multiple methods.  The simplest is that they were not signed correctly.  A beneficiary as a witness, missing pages, improper witnessing, or hand written changes to the will are examples of these.  (Changes must also be witnessed in the same way, and cannot be added later.)  Wills are also invalid if someone writes “void,” “cancel,” or other such words to show they no longer want the will (such as writing in new terms).  Also, a person can be shown to have a lack of capacity.  A person with severe dementia or a person signing while under the heavy influence of pain killers or other mind altering drugs would be examples of lack of capacity.

When someone is the executor or administrator, they have a fiduciary duty to make sure the estate is fairly distributed in accordance with the will and/or the Court’s findings.  If they give extra money to a favorite nephew, pay off their own bills, or otherwise handle the money (or other assets) in a way that is not what they should be doing, they are breaching their fiduciary duty.  An attorney could take them to court to answer for the misappropriation of assets and demand an accounting.

Year’s Support: Georgia has a unique provision to take care of those left behind.  Also called the widows and orphans law, this law allows for support of a spouse or minor children left behind, even if the estate has massive debts.  This is often used to preserve an asset such as the family home, but also can be used to protect money.  In a situation where someone has $20,000 in the bank and $50,000 worth of debt, the creditors would usually take all of the money.  However, a surviving spouse or minor children may make a claim to a reasonable amount of money to care for the family.  It is important to note that through the years, the “Year’s support” has expanded so that qualified survivors may request more than just one year of support.

If a loved one passes and you want to speak to an attorney about the next steps, set up a free phone or in-office consultation by calling 770-863-8355. 

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