Georgia Probate Procedings
"WHAT TO DO WHEN YOUR LOVED ONE DIES"
- presented as a public service by the Probate Court of Clayton
County - April 26, 1996
There are a number of different proceedings which may be filed in
the Probate Court following the death of a Georgia resident or a
nonresident who owned property in Georgia. Proceedings are filed in
the Probate Court of the County of Deceased's residence or a County
where property of a nonresident is located.
This pamphlet briefly describes the usual initial proceedings. For
each proceeding described, there is a standard form which the Court
will provide to any person.
It is recommended that you discuss matters of concern with an
attorney who practices probate or estate law. An attorney can
assist you in determining which proceeding is the most appropriate
for your particular situation. Very often, there are other matters
(e.g., tax returns, preparation of deeds, title transfers, etc.)
which may also make it necessary for you to seek the services of an
If you proceed without an attorney, it will be your responsibility
to determine or select the proceeding appropriate to your
situation. Probate Court Staff may not make the determination or
selection for you, since to do so may constitute the unauthorized
practice of law, a misdemeanor under Georgia law. Neither the Court
nor the county can accept responsibility for incorrect decisions
made by staff, and the staff members have been directed to refrain
from giving such advice.
It is also your responsibility to
properly complete all forms, which must be typed or legibly printed
in black ink. Staff are not permitted to perform stenographic tasks
for the public. Staff may be able to answer general questions about
the standard forms, deadlines for filing of proceedings, scheduling
uncontested hearings, and how other matters are scheduled by the
The Probate Judge is required by law to remain impartial to all
parties. The Judge must treat every case as though it may become
contested. Therefore, the Judge may not advise you on which
proceeding is most appropriate to your case. The Judge is
prohibited from discussing the facts or evidence in any contested
case with a party unless all parties are present. You should not
ask to discuss your case privately with the Judge, and you should
understand if the Judge stops any conversation with you which he
deems to require the presence of others.
Procedures Available For Decedents' Estates
WHEN THERE IS A
PROBATE: This procedure requires notice to all
heirs-at-law and becomes binding upon all parties immediately upon
appointment of the Executor. All heirs must be duly served or must
acknowledge service. The Court will appoint a Guardian ad litem for
each minor or incapacitated adult heir. The notice requires anyone
having a legal cause to object to the Will ("contest it") to file
the objection by a certain deadline. "Heirs-at-law" are the persons
who would inherit the estate if there were no lawful Will; they may
or may not be beneficiaries under the Will. The original Will must
be filed before or at time petition to probate is filed and proof
of the execution of the Will must be provided by Interrogatories or
other legal proof of Witness. Since March 28, 1984, it has been
possible to have a will or codicil "self-proven" by means of a
specially worded affidavit signed by the Testator and
PROBATE: This procedure may be done without notice to
heirs but does not become legally binding for four years after the
appointment of the Executor. The requirements of filing the
original Will and proof of proper execution are the same as with
solemn form probate. Heirs and others legally interested in the
estate may file a petition that the Will be offered for probate in
solemn form so that objection may be filed to it, at any time up to
four years after the common form probate.
PROBATE WILL IN SOLEMN FORM
& FOR LETTERS ADMINISTRATION WITH WILL ANNEXED: If
there is a Will but the named Executor(s) is/are either unable or
unwilling to serve, an Administrator with Will Annexed may be
appointed. If a named Executor is still living, he/she must sign a
document that he/she declines to serve, or there must be testimony
that the nominated Executor is unable to serve, in which case
he/she must be served as are the heirs.
WILL FILED ONLY, NOT
PROBATED: If there is no property to pass under the Will,
probate is not necessary. However, the Will of a Deceased 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 a motor vehicle, title may be
transferable through the Tag Office without probate being
necessary. There is no cost to file a Will not offered for
WHEN THERE IS NO
ADMINISTRATION: This procedure requires notice to all
heirs. A surviving spouse or sole heir is entitled to serve as
Administrator; otherwise, the administrator must be selected by a
majority of the Deceased's heirs. Administrators must post bond and
file inventories and returns, unless ALL heirs-at-law consent to a
waiver of those requirements If ALL heirs consent, the
Administrator may be given additional powers and authority. Natural
guardians of minor heirs and legal guardians of incapacitated adult
heirs may acknowledge service, consent to selection and consent to
waive requirements, unless guardian is Applicant.
ADMINISTRATION: Notice to all heirs-at-law is not
required, but a majority of the heirs-at-law must select the
Temporary Administrator, unless the Applicant is the surviving
spouse or sole heir. Powers are limited to collecting and
preserving the assets of the Deceased. No expenditures,
disbursement or transfer of title may be made without a special
court order. Temporary administrators must post bond and file
inventories and returns. When selection is required, natural
guardians of minor heirs and legal guardians of incapacitated adult
heirs may consent to selection unless the guardian is the
NECESSARY: If there is no Will, all heirs are over the age
of 18 and not under any legal disability, all debts have been paid
(or if all creditors consent), there is no need for formal
administration, and the heirs have agreed on how the estate will be
divided, this proceeding may be filed. Any creditors who have not
consented to entry of Order Declaring No Administration Necessary
must be served and not object.
WHETHER OR NOT THERE IS A
This proceeding may be filed only for the benefit of a surviving
spouse and/or minor children of a Deceased. Minor children must be
given a share of a year's support award. The Application asks that
specific, identified property be awarded to the spouse and/or minor
children. Notice must be given to all "interested persons".
Property awarded as year's support is free of all unsecured debts
of the Deceased's Estate, and the Award takes precedence over any
disposition by Will.
PETITION TO ENTER SAFETY
DEPOSIT BOX: This proceeding is usually used when there is
thought to be a Will in a safety deposit box. The order authorizes
a bank to open and examine contents of the box in the presence of
the petitioner. If a Will is found, the bank must deliver it
directly to the Probate Court. Insurance policies may be delivered
to the named beneficiaries, and petitioner may receive burial
instructions and deed to a burial plot. Other contents must remain
in the box until an Executor or Administrator is appointed.
The person who administers a decedent's estate when there is no
Administrator with Will
Annexed - The person who administers a decedent's estate
when there is a Will, but the Will either fails to name an
Executor, or the named Executor cannot or will not serve.
Decedent - The
Executor - The
person who administers a decedent's Estate when there is a
Heirs at Law -
Those persons who would inherit the estate if there were no
Intestate Without a Will.
Testamentary/Letters of Administration - The official
document issued by the Probate Court evidencing the authority of an
executor or an administrator.
Probate - The
court procedure by which a Will is proved to be the valid last Will
and Testament of a decedent; also used generically to refer to the
legal process of administering a decedent's estate.
Probate Court -
The Court having jurisdiction over proceedings to administer the
estate of a decedent; also has jurisdiction over many other
Testator - Person
who has made a Will.
Will - A document,
signed with the formalities required by Georgia law, by which a
person makes disposition of his property, to take effect after his
This information is a revision of
the writing of Honorable William J. Self, II, Judge of the Probate
Court of Bibb County, Georgia, and Ms. Dianne Brannen, Ombudsman
for the Probate Court of Bibb County, Georgia. Judge Self received
his B.B.A. and J.D. degrees from the University of Georgia. Ms.
Brannen received a B.M. degree from Wesleyan College, an M.B.A.
degree from California State University, Los Angeles, and a J.D.
degree from Mercer University.