When you pass away, your family is left to manage your final affairs. If a proper estate plan isn’t in place, many assets won’t pass directly to your heirs. Instead, they must first go through a formal, court-supervised process known as probate.
Like most court proceedings, probate can be time-consuming, expensive, and stressful for your loved ones. Because the entire process is public record, it also opens your family’s private affairs to the world. For these reasons, a primary goal of effective estate planning is to keep your family out of court and make the transfer of your assets as simple and private as possible.
During probate, the Probate Court in your county oversees all the legal actions required to settle your estate. Let’s explore what that process entails and why it’s a burden you should help your family avoid.
When is Probate Required in Georgia?
Probate is the “default” process for any assets that do not have an automatic, designated beneficiary. If you don’t have an estate plan, or if your plan only consists of a basic will, your estate is almost certain to face probate.
- Dying Intestate (No Will): If you die without a will, probate is required. The court will appoint a “Personal Representative” to manage your estate, and your assets will be distributed according to Georgia’s intestate succession laws—a rigid, one-size-fits-all formula that gives priority to your spouse, children, and parents, regardless of your actual wishes.
- Having a Will-Only Plan: This is a common misconception. A will is a vital document, but it does not avoid probate. In fact, a will is essentially a set of instructions for the probate court. Your named “Executor” must still file the will and petition the court to begin the probate process.
- Having an Invalid Will: If a will is found to be improperly signed, witnessed, or created under duress, the court will declare it invalid. Your estate is then treated as if you had no will at all (intestate).
Does Georgia Have a “Small Estate” Exception?
Yes, Georgia offers simplified procedures for very small estates, but the qualifications are narrow.
- Petition for Order Declaring No Administration Necessary: This may be used if the estate has no will, has no debts (or all creditors consent), and all heirs unanimously agree on how to divide the assets. This is often used for estates valued at $10,000 or less.
- Bank Accounts (O.C.G.A. § 7-1-239): If a person dies without a will and the only asset is money in a bank account (up to $15,000), a family member can obtain those funds using a simplified affidavit, bypassing formal probate.
These exceptions are limited. They do not apply to real estate or more complex estates. Relying on these exceptions is not a substitute for a real estate plan.
How the Georgia Probate Process Works: A 6-Step Overview
While every estate is unique, the probate process generally follows the same six steps.
1. Filing the Will & Petitioning the Court
Following a death, the person named as Executor in the will (or an interested party if there is no will) files the will and a “Petition to Probate” with the county court. This petition, along with a certified death certificate, officially opens the probate case.
2. Appointing the Executor or Personal Representative
The court must formally appoint the Executor. If the will is valid, the court typically approves the person you nominated. If there is no will, the court appoints a Personal Representative (or “Administrator”), usually the closest living relative. This person is now a fiduciary with the legal responsibility to manage the estate, and the court may require them to post a bond (a type of insurance policy) at the estate’s expense.
3. Marshaling and Valuing All Assets
The Executor’s next job is to find, secure, and create an inventory of all your assets. This includes bank accounts, real estate, investments, vehicles, and personal property. This step can be a nightmare if you haven’t kept an updated asset inventory.
Assets the Executor can’t find may eventually be turned over to Georgia’s Department of Unclaimed Property. This is an avoidable fate. As your estate planning attorney, we help you create a comprehensive asset inventory and, more importantly, ensure it stays updated throughout your life.
4. Notifying Creditors and Paying Debts
The Executor must publish a “Notice to Debtors and Creditors” in the county’s official newspaper to notify potential creditors. In Coweta County, this is the Newnan Times-Herald; in Fayette County, it’s the Fayette Daily News. Creditors then have a limited time to make a claim against the estate. The Executor reviews these claims, challenges any they deem invalid, and pays all valid debts, final medical bills, and funeral expenses from the estate’s funds.
5. Filing and Paying Final Taxes
Once debts are handled, the Executor must file the deceased’s final personal income tax return. They must also determine if any estate taxes are due.
It’s important to note that Georgia does not have a state estate tax or an inheritance tax. However, the federal government imposes an estate tax on very large estates (valued at over $13.61 million per individual in 2024). While most families won’t owe this tax, our firm can implement advanced tax-saving strategies for those who may be impacted.
6. Final Distribution and Closing the Estate
After all debts and taxes are paid, the Executor files a “Petition for Discharge.” This includes a final accounting of every dollar that came in and went out of the estate. If the court approves the accounting, it issues an order authorizing the Executor to distribute the remaining assets to the beneficiaries. Once all assets are distributed, the court formally closes the estate, and the Executor’s job is finally done.
The True Burden of Probate: Why You Want to Avoid It
This six-step process may sound straightforward, but it places a significant burden on your grieving family.
- It Is Time-Consuming: A simple, uncontested probate in Georgia still takes months. If there are any complications, creditor issues, or family disputes, it can easily drag on for over a year, leaving your assets frozen.
- It Is Expensive: The estate must pay for court filing fees, appraisal fees, the Executor’s bond, and potential Executor compensation. Most families also hire a probate attorney to navigate the complex legal requirements, and those legal fees are paid from the estate’s assets—money that would have otherwise gone to your heirs.
- It Is Public: Probate is a public court proceeding. Your will, your list of assets, the value of your estate, your debts, and the identity of your beneficiaries all become part of the public record. Anyone can go to the courthouse and see these personal details.
Keep Your Family Out of Court and Conflict
A primary goal of our firm is to create estate plans that keep your family out of court and out of conflict. As you can see, a will-only plan fails to meet that goal, leaving your loved ones to deal with a process that is time-consuming, expensive, and public.
The good news is that probate is not inevitable. With proactive and comprehensive estate planning, you can spare your family this burden. If you haven’t put a plan in place or have an old plan that would force your family into probate, we are here to help. We offer Probate Law Services for families currently in the process and planning services to help you avoid it entirely.
To get started, contact us today to schedule a Life and Legacy Planning Session.
