After the funeral for a loved one, thoughts often turn to settling the estate. One of the first questions that comes up is “is there a last will and testament?”. The answer to this question will have a number of implications for how the estate is handled.When the deceased leaves a valid will, we refer to the estate as a testate estate. When there is no valid will, we refer to it as an intestate estate. It is important to remember that in order for a will to be considered valid, it must be filed for probate with the probate court, and approved by the probate court. There are a number of reasons why a last will may or may not be valid, and those are beyond the scope of this topic so we will not review them here.
With a Will
When the deceased leaves a last will and testament, it can sometimes (but not always) simplify the first and second phases of the process of settling an estate. Contrary to popular belief, however, having a will does not mean that an estate will not be contested. In fact, one common cause for an estate dispute is having a will that someone in the family does not feel is valid, or that represents the true wishes of the deceased. For our purposes here, though, we will assume that there are no disputes regarding the validity of the will.
The last will and testament should identify the person who will manage the estate as the executor. Often, there will be backup executors named in case the first executor cannot or will not serve. In addition, the will may alleviate the requirement that the executor post a bond and file formal inventories with the probate court, and may provide the executor will additional powers above and beyond the basic powers that Georgia probate law provides.
When there is a last will and testament, in addition to asking the probate court to appoint a particular person as personal representative to manage the estate, the petition must also ask the court to confirm that the document filed with the petition is in fact the legal last will and testament of the deceased. It is very important to note that an executor identified by a will does not have any power to act on behalf of the estate until after the will and the executor’s appointment have been officially confirmed by the probate court.
In addition, the presence of a will dramatically changes how the estate is distributed. While payments to valid creditors of the estate are the same regardless of whether there is a will, all other distributions can be radically different because a valid will may direct that property be disbursed in whatever manner the deceased saw fit. For example, valid will in Georgia may direct that a certain amount of money or certain items of property go to one person, that real estate goes to another person, and that the remainder goes to a different person. The will could also direct that certain percentages of all property go to certain people. It could require that a home be kept and transferred to a certain beneficiary, or it could require that the home be sold. The will could also specifically disinherit an heir, such as a child or spouse.
As you can imagine from these examples, the different terms a will could contain are endless and limited only by the imagination of the deceased. As a result, reading and interpreting the terms of a will can sometimes be an art that necessitates professional help in order to make sure everything is done correctly. If you would like to speak with a member of our team about your specific situation, please have a consultation.
That’s the end of part one. In part two, we’ll dive into the ramifications of not having a last will and testament.
Disclaimer: The information above is provided for general information only and should not be considered legal advice. Legal advice is specifically tailored to your particular situation. Please contact our office to receive specific information advice about your situation.
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