Wills

Administration of the Estate When There is No Will

An individual who dies (also called a "decedent") and who has no will is said to have died intestate. This means in most circumstances that the Probate Court will need to appoint an Administrator to handle the property that the decedent owned.

In order to apply to have an Administrator appointed, you should use Georgia Probate Court Standard Form #3 (Petition for Letters of Administration). The Standard Forms are available at the courthouse or online. This form must be typed and not handwritten. The form must be filed in the Probate Court of the county where the decedent was domiciled at death.

If the decedent is survived by a spouse and/or minor children, they may consider filing for Year's Support.

After paying all debts, the Administrator will distribute the property to the decedent's heirs. The heirs are the closest relatives of the decedent and must be listed on p.1 (Part 3) of the Standard Form #3. The fees for Standard Form #3 (Petition for Letters of Administration) must be paid upon filing the petition with the Probate Court. The Probate Court will accept cash, money orders, or personal checks made payable to "Probate Court".

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Probate of Wills

An individual who dies, also called a decedent, and who has a will is said to have died testate. The will is usually offered for probate by the individual who is named in the will as the executor. The process of probating a will is the formal process by which the Probate Court determines a document has been proved to be the last will and testament of the decedent and officially appoints the executor or some other person to handle the distribution of the decedent's property. Even if the will is not going to be probated, anyone who is in possession of the will of an individual who has died must bring the will to the Probate Court for filing.

The will is probated in the Probate Court of the county in which the decedent was domiciled at death. In order to probate the will, the executor should file the original signed will and, (in most cases) Georgia Probate Court Standard Form #5 - Petition to Probate Will in Solemn Form. The Standard Forms are available at the courthouse or online at the official statewide Probate Court web site, www.gaprobate.org. These forms must be typed and not handwritten.

Notice of the Petition to Probate the Will in Solemn Form must be given to all the heirs of the decedent. In Part 3 of Standard Form #5, the petitioner must fill in the names, ages, and addresses of the heirs of the decedent. It is important to note the difference between heirs and beneficiaries. The heirs are the closest living relatives of the decedent. The beneficiaries are those people who are given property in the will. If a person is a beneficiary but not an heir, that person does not have to be listed in Part 3 of Standard Form #5. There are certain rules regarding the notice that must be given to heirs.

The filing fees for the petition to probate the will must be paid at the time the petition is filed with the Probate Court. The Probate Court accepts cash, money orders, or personal checks made payable to "Probate Court."

If the will does not contain a Self-Proving Affidavit, then the petitioner must file Standard Form #6 - Interrogatories to Witness to Will at the time he files the petition to probate the will. The answers to the interrogatories to the will must be filled out by a witness to the will, but the top portion may be completed by the witness, the Petitioner or the Petitioner's attorney.

If the decedent is survived by a spouse and/or minor children, they may consider filing for Year's Support.

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Frequently Asked Questions

1. What are the first legal steps I should take after someone dies?
2. Do I need to have a lawyer?
3. Can you give me the name of a good lawyer?
4. To which Probate Court should I go?
5. What is the procedure in the Probate Court?
6. Can a clerk tell me if I filled out a form correctly?
7. Can I see the Judge before the hearing takes place?
8. What will happen in court?
9. What happens if I don't go to the hearing?

The first step is to determine whether the individual who has died left a will. If there is a will, then the executor or some other person may offer the will for probate in the Probate Court.

Even if the will is not going to be probated, anyone who is in possession of the will of a decedent must bring the will to the Probate Court for filing.

If there is no will, then the usual procedure is to have an administrator appointed to take care of the decedent's estate.

Whether or not there is a will, if a spouse or minor child (under age 18) survives the decedent, they may want to consider whether to file for Year's Support.

People are not required to have a lawyer to represent them, but in most cases it is advisable to have a lawyer. The Clerks of the Probate Court may not serve as your legal advisors, and you should not expect them to perform legal or clerical services for you. They work for and at the direction of the Probate Judge. It is their responsibility to process the volume of paperwork filed in the office and to attend to the administrative aspects of the operation of this office. They are here to serve you, and they will want to do so to the best of their abilities. They are not allowed to complete any paperwork for you, nor can they make a legal determination or advise you on which proceeding is most appropriate or advisable.

The information on this web page and the Probate Court Standard Forms are designed to help you perform simple filings on your own; however, if you find that the filing is more difficult than you expected, you should seek the assistance of an attorney.

When deciding whether or not to hire an attorney, you may want to consider how important the outcome of the case is to you. In a guardianship case, you are advised that an attorney will be appointed who will vigorously represent the Ward and who will oppose the guardianship if that is what the Ward wishes.

The court cannot recommend a particular lawyer.

The Probate Court in the county where the decedent was living at the time he or she died.

First, a formal document, called a petition, must be filed.

For most routine petitions, you are required to use a form that is standard throughout Georgia. The forms are available at the courthouse or online. All forms must be typed and not handwritten.

If you have questions about what to put in a certain blank of a form, you should write down in your own words what happened (or what the circumstances are, or what other factual information is required).

Next, you file the petition and pay the filing fees. The clerks will tell you what fees are due when you have finished filling out the petition.

Notice is given to the people who might be affected if the petition is granted.

If no one objects after notice is given and after the deadline for objections has passed, the Court will either have a hearing or will issue an order, depending on the case.

A clerk cannot tell you whether the information you have provided is complete or correct; only you know whether it is correct or complete.

The judge talks with all parties in a case at the same time. You would not want the judge to be talking to the other side about your case if you were not present. You will be notified by mail when the case is scheduled for a hearing. Then you can talk to the judge.

The judge will call on the petitioner(s) to present their case first. Each witness will be questioned in turn. Then, the judge will call on the other side to present its case. The lawyers and the judge will ask questions if needed. After all evidence, the judge will either announce her decision or that she will consider it further. A written order will then be issued.

The judge will decide the case based on the evidence presented at the hearing. If another party objects to your petition, or if you are the only one objecting, and you present no evidence, you run the risk of losing your case.

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