Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
When someone passes away, it is common for family members to ask questions about their loved one’s financial assets. They might wonder:
“What do I do with their bank accounts?”
“Can someone withdraw from these accounts?”
“Who will deal with their financial matters?”
“Who is responsible for my loved one’s debts?”
We will answer some of these common questions and offer guidance to help you confidently manage financial assets.
During probate, the deceased’s financial assets are gathered and assessed for their worth. These assets can include:
After the estate has been evaluated, any outstanding debts and property taxes owed by the deceased are paid off using the assets in the estate. Once creditors have been satisfied, the personal representative is then able to distribute any remaining assets to beneficiaries or heirs in accordance with the will or intestate law.
It is important to keep in mind that not all assets are subject to probate. Assets that are jointly owned with a designated beneficiary, or that have a transfer-on-death or payable-on-death designation, may not need to go through the probate process.
Access to a deceased person’s financial assets will depend on how the assets are titled (probate or non-probate). Financial institutions do not allow just anyone to touch the deceased’s bank accounts.
When a will exists, the executor named in it shall have the authority to access and handle the deceased’s financial assets, once they have been appointed by the Probate Court.
If no will exists, the Probate Court must appoint an administrator to access the financial assets and oversee the probate estate.
The probate process in Georgia consists of three phases: appointment, administration, and distribution & discharge. During the initial stage, known as the appointment phase, the Probate Court will assign a personal representative to handle the estate assets.
Not all types of financial assets are subject to probate in Georgia.
Assets that have a designated beneficiary, such as life insurance policies and retirement accounts, are typically considered non-probate assets. This means that the named beneficiary has sole access to the funds and they may not be subject to the probate process. It’s worth noting that these assets may pass directly to the named beneficiary, regardless of what the will or intestate law says.
However, assets that were solely owned by the deceased person, like bank accounts and real estate, are generally subject to probate. It’s important to review all financial assets and their ownership structure to determine which are subject to probate and which are not.
To ensure that all assets are properly handled and accounted for during probate, it is best to speak with an experienced attorney.
When a person passes away, the Probate Court will determine who owns the financial assets they left behind.
If there is a valid will, the assets will be distributed according to its terms.
If there is no will, or if the will is invalid, state law will decide how the assets will be distributed.
Once the probate process is complete, the ownership of the financial assets will typically transfer to the deceased’s beneficiaries or heirs.
The personal representative (i.e., the administrator or executor) is responsible for the deceased person’s financial assets during the probate process.
Their role includes:
In Georgia, the executor or administrator must identify and pay all outstanding debts out of the deceased’s estate assets. These obligations may include credit card balances, funeral expenses, medical bills, or mortgages.
If there is not enough money to cover debts, they may have to sell assets at a fair market value to cover the costs.
If debts still exceed the assets, the estate may be considered insolvent, and beneficiaries may not receive any inheritance.
The appointed executor or administrator should establish an estate bank account to hold all the financial assets. Having an estate-dedicated account makes it easier to keep track of all estate income and expenses in one place.
The financial assets can then be used to satisfy all the estate creditors before distributing whatever remains to the heirs and beneficiaries.
For transparency, we encourage executors or administrators to create a detailed record of all estate-related transactions. This record will be beneficial in case of legal disputes or audits.
When one account holder of a joint financial account dies, the ownership automatically transfers to the surviving owner(s). In most cases, probate will not be necessary to make this happen.
If there is a joint owner on the account, then it may be viewed as a non-probate asset. This means the surviving co-owner can access and take ownership of the account.
If the account solely belongs to the deceased, nobody should use it until an executor is appointed, even if there is a power of attorney. This is because the power of attorney immediately ends when the principal dies.
After the principal’s death, the deceased’s will or the Georgia intestacy law would determine what happens to the account.
The heirs and beneficiaries will receive their portion of the estate during the final phase of the probate process known as distribution.
During this stage, the estate’s personal representative will allocate the remaining assets to heirs and beneficiaries before filing the required paperwork with the Probate Court to close the estate.
Per GA law, once creditors have been satisfied in the correct order, the personal representative can then distribute the remaining assets to the heirs or beneficiaries.
It is important to note that the personal representative is not personally responsible for the deceased person’s financial obligations.
With proper estate planning and key paperwork, it is possible to bypass some creditor claims.
Many debt collectors are familiar with these tactics and may attempt to resist the process by pressuring family members to pay.
If creditors are harassing you, seek professional advice from an estate attorney to know and protect your rights.
Probate duration depends on estate size, complexity, beneficiary disputes, and court efficiency.
It can generally take several months to a year or more to complete. This process can be delayed further if legal challenges or estate disputes emerge during probate.
For probate assets, beneficiaries cannot access the deceased person’s assets before probate is complete. Any unauthorized access to the assets can result in legal consequences.
However, in some cases, beneficiaries can receive part of their inheritance during probate through a process called preliminary distribution.
Preliminary distribution involves filing a petition and obtaining approval from the Probate Court to receive a partial distribution of the assets.
Another way to get a portion of the inheritance is through a year’s support claim if you are the decedent’s surviving spouse.
Not everyone can file for preliminary distribution. Typically, the court grants it under certain circumstances, such as when:
It is best to consult with a probate attorney to determine whether the preliminary distribution is a viable option for you.
Although this article provides guidance on managing a deceased person’s financial assets during probate, it is always best to consult a probate attorney. This resource only covers some of the most common questions, but your circumstances may be different.
Our experienced lawyers are always here to help you. You can contact us anytime at (770) 796-4582 for any legal support you need.
© 2023 Georgia Probate Law Group by Broel Law, LLC. All rights reserved.