Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
If a child is an heir to a Georgia estate, it will make a large difference in how the estate is handled, and how complicated it is.
Who is a minor?
Before we jump into that, however, I think we should first define who is a minor under Georgia probate law, and when it matters. A minor is anyone who is under the age of 18. We are concerned when a minor is an heir of an estate under Georgia law, or beneficiary of an estate under the terms of a will. If someone is a minor at the beginning of the process, but turns 18 during the process, then they will be considered an adult at the time of their 18th birthday. So, it is possible to start an estate with minors involved, and end without any minors.
Having minors involved will cause a number of different complications at various stages of the process of settling an estate. For our purposes, I will assume that the situation is uncontested and that everyone gets along. There can be even more complications in a disputed situation.
For example, in the first phase of the process our goal is to have someone appointed as administrator or executor of the estate. In an uncontested situation, the other family members will typically sign a consent agreeing not to challenge the administrator or executor to prevent them from serving, and to make the process easier. A minor heir may not sign one of these consents, and the minor’s parent or guardian may not sign on the minor’s behalf. Instead, the probate court will appoint a guardian ad litem to represent the minor’s interest. The guardian ad litem is usually an attorney and his or her only job is to look at the entire situation from the point of view of the minor, and report to the Probate Court whether it is in the minor’s best interest. Having a guardian ad litem involved in a case will usually cause increased delays and costs.
After someone is appointed as administrator or executor, the estate will be in the administration phase. Unless there is a will that specifically provides expanded powers to the executor, a court will generally not grant expanded powers to an administrator or executor when a minor is involved in an estate. As a result, the executor or administrator will need to file a petition and seek court permission before performing many actions on behalf of the estate, such as selling property. Each time one of these petitions is filed, a guardian ad litem will need to be appointed to review the situation from the minor’s perspective.
When the time comes to make distributions, a minor may not receive more than $15,000 in property or money unless a conservator has been appointed for the minor. It is important to remember that if there is a will that directs that the minor’s inheritance be placed in trust, then a conservator will not be required because the property is not going to the minor, it is going to the trust.
When property does go to the minor, however, a conservatorship will need to be established. A conservatorship is an ongoing, court supervised proceeding that will last until the minor becomes an adult. An adult, typically a parent or other relative, will file a petition with the court asking to establish the conservatorship. The conservator will need to post a bond with the court, and all of the property that would go to the minor will go into the conservatorship. The rules for a conservatorship are very strict. For example, the conservator will need to report to the court each year and show what has happened with the money or property. In addition, the conservator may not use any of the money without court permission. Once the minor turns 18, all of the property and money in the conservatorship will be turned over to the minor.
Finally, in the last phase of settling an estate, the goal is to have the administrator or executor discharged so that the estate may be considered closed. Typically, the administrator or executor will want to be discharged from office and liability. When that petition is filed, a guardian ad litem will need to be appointed to investigate the actions of the executor or administrator and determine what is in the best interest of the minor.
As you can imagine, there is a lot of additional work involved in settling an estate when there is a minor heir. Georgia Probate law takes the protection of a minor’s interest in an estate very seriously.
If you would like help with your situation, please have a consultation with a member of our team.
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