Managing the Estate of a Loved One: The Process of Probate CourtWritten on March 12, 2015
When a loved one dies, grief may make it difficult to even get out of bed, yet there are many things that need to be done. Even when the person had a will and you have access to it, you may still have to go through the court system to probate it. Probate is defined as “proving in court that the will of the person who has died, is valid.” It ensures that the deceased’s assets will be distributed according to his wishes and also that debts are handled appropriately. Georgia’s process offers some legal protection for the person managing the estate, who is called an executor when there is a will. When there isn’t a will in place, there may be an administrator appointed to administer and close out the estate.
Even when administration of the estate is uncontested, the process can be a lot to manage. Beyond the sentimental items, there may be property or other assets to be appraised or sold and debts to be settled. Not all assets are subject to probate, such as accounts or property that were jointly owned by a spouse, for example. The Silverbach Group can help classify each asset by clarifying survivorship rights and make additional filings where needed. This is a big help to those that are dealing with the emotional strain after the death of a loved one.
The person managing the estate has decision-making power for probate assets under Georgia law. If family members or others feel the executor or administrator is acting inappropriately, swift action must be taken while the estate is open, because once it is closed, it is closed for good. The process for an uncontested probate of an estate can be as short as six months for a motivated executor with the assistance of an experienced attorney. The process includes the following phases:
1. Appointment of an executor or administrator (Up to 60 days)
2. Administration of the estate by the executor according to the instructions in the will and state law. This includes settling debt, distribution of funds and sentimental items, and transfer of property. During this phase, a notice is published in the newspaper for 4 weeks that allows any other potential heirs and creditors to come forward to make a claim on the estate. (3+ months)
3. Closing of the will (Up to 60 days).
*Note: Minimum times are outlined above. It can take much longer for contested or complicated estates.
Claims for life insurance policies may be made directly with the insurer independent of probate; however, the insurance company may not process the claim until Phase 2 if the estate itself is the named beneficiary or if a beneficiary had previously passed away.
Be advised that there could be steep consequences for transferring your loved one’s assets prior to being named executor or administrator by the court. Someone acting before being appointed is called “executor de son tort,” which can be liable to other heirs for double the value of the property.
While all estates should be handled in a timely manner, there are a few situations that demand immediate attention, including:
- If young children are in danger after their parent’s passing
- If someone is wrongly taking items, funds or other assets from a property, estate or trust
- If a home or vehicle is under threat of foreclosure or repossession
- If the deceased owned, or was a partner in, a currently-functioning business
- If an upcoming hearing or court date is scheduled
If you find yourself in any of these situations, contact a licensed probate attorney as soon as possible. The Silverbach Group is able to prioritize cases such as these and will talk with you to recommend the best course of action in your particular situation.