Probate Court - FAQ
INTESTATE ESTATES
Who is eligible to serve as the Administrator?
Any person who is age 18 or over and who is not incapacitated can serve as an Administrator.
The person does not have to be a resident of Georgia or a U.S. citizen.
The person may be, but is not required to be, an heir or other member of the decedent's family.
Who decides who will be the Administrator?
There are two options:
The heirs may unanimously select the person who will serve.
If all the heirs agree on who should be the Administrator, then fill in that person's name on p.1 (Part 2) and on p. 4 of the Standard Form #3. Also all the heirs must sign the "Selection by Heirs" portion on page 4 of Standard Form #3.
If the heirs live in different places, you may make several copies of p.4 and have each heir sign a copy and have the signature notarized and file all the separate copies.
If the heirs can't agree on who should serve, the Probate Court will choose the Administrator. In making this selection, the Probate Court will consider, but is not required to choose, the decedent's spouse, heirs, a person selected by a majority of the heirs, a creditor, or other eligible persons. Even if the heirs cannot agree unanimously, the person who files the petition can fill in a suggested name on p. 1 of Standard Form #3, but the Probate Court is not required to appoint that person.
Who receives Notice of the Petition for appointment of an Administrator?
Notice must be mailed to all of the heirs whose addresses are known.
Alternatively, the heirs may waive notice by filing a written and notarized Acknowledgement of Service and waiver (p.4 of Standard Form #3).
Also, notice must be published in the county newspaper if: (a) the identities or addresses of any heirs are not known, or (b) the heirs have consented to a waiver of bond and / or a grant of powers.
Check the appropriate paragraph on p.4 (Part 5) of Standard Form #3. If publication is required, the Probate Court will handle the publication process.
If there are heirs who are minors or incapacitated adults, or who are unknown or whose addresses are unknown, a guardian ad litem must be appointed.
What are the responsibilities and powers of an Administrator?
An Administrator is responsible for handling the decedent's estate - that is, for figuring out what is in the estate, for paying the decedent's debts and for transferring the decedent's property to the heirs.
The powers of the Administrator are limited by law so that an Administrator may need to petition the Probate Court to get permission to perform certain acts (e.g., to sell property) unless powers have been granted.
The heirs may choose at the outset to grant to the Administrator the power to perform acts without first seeking court permission. This agreement to a grant of powers must be unanimous. All the heirs must sign and have notarized the Grant of Powers Form on p.4 of Standard Form #3.
If the Heirs live in different places, you may make several copies of p.4 and have each heir sign a copy and have the signature notarized and then file all the separate copies.
If the heirs consent to granting powers, notice of the consent must be published in order to give anyone who has a claim against the estate the opportunity to object.
Must the Administrator post bond?
To protect the estate during administration, an Administrator is required to post bond and to file certain reports with the Probate Court unless relieved.
The heirs may choose to authorize the Court to waive the Administrator's responsibility to post bond and file reports;
This waiver must be unanimous and the heirs must all sign and have notarized the Consent of Heirs to Waiver of Bond on p. 4 of Standard Form #3.
If the heirs live in different places, you may make several copies of p. 4 and have each heir sign a copy and have the signature notarized and file all the separate copies.
If the heirs consent to waiving the requirement of bond, notice of the waiver must be published in order to give anyone who has a claim against the estate the opportunity to object.
NOTE: Before the bond can be waived, the court may perform a criminal history background check on the proposed Administrator.
The Administrator may be required to sign a separate form consenting to the background check. The results of this check will generally be kept confidential, but they may be revealed to any attorneys or guardians ad litem who are involved in the process.
How do I determine the heirs of someone who has died?
If you need help determining the heirs of the decedent, you may consult the Rules of Inheritance page of this website, which has a text version and flowchart for determination of heirs.
If I die, will the state get all of my money?
This happens very rarely in Georgia. If you have no will and no heirs at law, then there is a chance that your estate will go to the state.
Should I have a living will so that my family will not have to probate my estate?
Living wills deal with health care and are often confused with living trusts. Georgia is probate friendly; living trusts are often times more costly and confusing. The decision for the creation of a trust should never be undertaken without the advice of an attorney who specializes in probate and estate planning.
If I have a will, is my estate in good order?
Yes and no. Having a will is a start. A will is only one tool used in estate planning and it may be necessary for your estate to have other documents to effectively carry out your desires or to handle your affairs in the event of incapacitation. Estate planning includes providing for one's care in the time of a medical emergency in both the short term and long term. This can be accomplished through a Power of Attorney and a Durable Health Care Power of Attorney. (See the web pages dealing with Alternatives to Adult Guardianships.) A well-drawn will and a well-prepared estate will save your family time, money, and a great deal of heartache.
Can I prepare my own will?
We do not recommend that an individual prepare his own will. The wisest money a person may spend for an attorney is for the preparation of a will and related estate planning documents.
Can I avoid Probate?
There are ways, especially between a husband and wife, that Probate can be avoided. Seeking advice from an attorney that specializes in probate and estate planning can accomplish this goal and allow you to weigh all options in determining if this is the best course of action for you.
