Although there is no Georgia probate law that requires an estate to be opened with the probate court, the law does require anyone who is in possession of an original will of the deceased to present it to the appropriate probate court. The will can be presented to the probate court for information purposes only at little to no cost, and it will not cause a probate estate to be opened
As a practical matter, however, most, if not all, estates should go through Georgia probate in order to protect against liability and prevent costly problems in the future
For example, when probate is opened, an executor or administrator is appointed to manage the estate and ensure that Georgia probate law is followed. Once the process is complete, the executor or administrator can get a discharge from office and liabiliy from the probate court. That protects the executor or administrator from being sued later by creditors, heirs, or beneficiaries for acts while managing the estate
If probate is not opened, then that liability protection is not available, and the person(s) that are managing the estate, taking property, or giving away property can be held liable by creditors, heirs, and beneficiaries if Georgia Probate Law is not followed. Despite the fact that no one was ever actually appointed as the administrator or executor of the estate, Georgia law hold he persons acting like an administrator or executor to the fiduciary standard of an appointed administrator or executor, but without any of the beneficial liability protections. It is not a great place to be
In addition, unless probate is opened, it can create problems for titled property such as vehicles, business interests, and real estate. Also, many times, financial institutions will freeze the deceased’s accounts and not allow access until an executor or administrator is appointed by the probate court. How would you like to be in a position to sell the home for a great price only to find out that everything must be delayed (and you may lose your buyer) because the title is held by a deceased person and the sale cannot close? How many buyers will stick around for a few months while the whole thing is sorted out
These are just a couple of the main reasons why opening probate is practically necessary even though it is not legally required. If you have questions about this or need help with a particular situation, call our office or schedule a free consultation so we can help you.
Disclaimer: The information above is provided for general information only and should not be considered legal advice. Our probate lawyers provide legal advice to our clients after talking about the specific circumstances of the client’s situation. Our law firm cannot give you legal advice unless we understand your situation by talking with you. Please contact our law office to receive specific information about your situation.