What is Probate? 

Probate is the process by which a deceased person’s Will is formally recognized as valid by the applicable Probate Court. The Probate Courts themselves advise people to retain the services of a good probate lawyer whenever they delve into estate matters. The best way to be certain that the wishes of the deceased will be carried out to the letter, and that beneficiaries will receive what is due them in a timely manner and without excessive taxation, is to engage the services of a qualified Atlanta probate law firm.

Generally, the person named as the Executor of the person’s estate takes the original Will, along with either a death certificate and a petition to probate will in solemn or a petition to probate will in common form, to the Probate Court of the county in which the deceased person had his or her primary residence and offers the Will for probate. As part of this process, the nominated Executor generally also provides information about the person’s heirs and provides evidence to prove that the Will is actually the valid Will of the deceased person. Assuming the evidence and all information provided by the Executor is satisfactory, the Probate Court will generally appoint the Executor and issue Letters Testamentary.

If a deceased person does not have a Will, then there is no probate process, since there is no Will to validate. However,  if there are any assets which became part of the person’s estate (generally, any assets the person owned which did not pass to another person under a right of survivorship or a beneficiary designation), then the person’s estate still must be administered before the person’s assets can be distributed to the person’s heirs. State law determines the person’s heirs, and the heirs will receive any assets which remain in the person’s estate after the estate has been administered and debt, taxes, and administrative expenses have all been addressed. Someone will need to seek appointment as the Administrator of the person’s estate. If all of the heirs consent to that person’s appointment, then the Administrator can be appointed with fairly broad powers, and can be relieved of the need to post a bond or file inventories and reports with the Probate Court. However, if the heirs are not all willing to consent, the Administrator may need to post bond, file inventories and reports with the Court, and seek Court permission before doing many administrative tasks. When an Administrator is appointed by the Probate Court, the Court issues Letters of Administration.

We will work with you to ensure that you understand your options and the pros and cons of each option. 

What is Estate Administration? 

Once the Letters Testamentary or Letters of Administration have been issued, the Executor or Administrator (sometimes referred to generally as a “Personal Representative”) begins the process of administering the deceased person’s estate. The estate administration process generally involves some or all of the following tasks:

• Collecting information about the deceased person’s assets and debts, including preparing an inventory and obtaining any needed appraisals
• Gathering the decedent’s assets
• Filing any inventory or returns which may be required by the Probate Court
• Requesting publication of a Notice to Debtors and Creditors
• Directly notifying any known creditors
• Collecting amounts owed to the deceased
• Applying for life insurance proceeds for policies payable to the estate
• Providing beneficiaries named in beneficiary designations with the information needed to help them collect amounts payable to them from retirement accounts or life insurance
• Filing final state and federal income tax returns for the deceased
• Deal with any companies in which the deceased owned an interest
• Communicating with the deceased person’s heirs and beneficiaries about the estate and their interests in it
• Paying debts owed by the deceased
• Filing state and federal income tax returns for the estate
• Filing any gift tax returns which may be needed to report gifts made before death by the decedent
• Filing any needed state or federal estate tax returns
• Distributing the deceased person’s assets as directed by his or her estate planning documents. This item alone can present many complications, including, among many others, the need to figure out the best way to fund bequests or divide assets, the need to determine potential income tax consequences on distributions, and the need to make sure estate assets are appropriately managed and invested during the estate administration process.

The actual tasks needed in any given estate can only be determined based on the actual facts of the particular situation.

In many probate and estate administration matters, the Executor or Administrator may never have handled an estate before, and finds himself or herself in a complex and unfamiliar position, with many serious responsibilities and duties imposed by law.  Family members dealing with the grief and stress of losing a loved one can be difficult to deal with, and family relationships may end up strained. The assistance of an experienced attorney can be tremendously valuable to the Executor or Administrator of an estate, and can make navigating unfamiliar tasks a much smoother and less daunting process.  

When you are going through this highly sensitive process, you need to work with an Atlanta probate attorney who is knowledgeable, experienced, flexible, and empathetic.  We can even help remove an Executor or Administrator who is not carrying out his or her job properly.