What to do when not all heirs are included in probate?

Tags heirs, probate

probateUnder Georgia probate law, when a person has passed away and there are certain requirements that must be met to properly open an estate for the deceased. The first would be to file a petition with the court that has true and correct information. There are several different types of petitions that can be filed to open an estate depending on various factors (if there was a will, or not). The one common requirement among all these petitions is that the Petitioner (person who is filing the petition) is required to list all the legal heirs to the estate of the deceased, even if there is a will giving the estate property to someone who is not an heir.

The courts provide a document (heirs determination worksheet) that can help you determine who should be an heir to an estate. But to give a general idea of who would be an heir, in a simple case, it would be any surviving spouse of the deceased, and the deceased’s natural born or adopted children. If someone in those categories is deceased, or the deceased did not have anyone in those categories determining the legal heirs gets a bit more complicated.

Once you have determined who is an heir to the estate, the next step is to confirm that the Petitioner has include everyone on the petition. If you are in a situation where a Petitioner has left out an heir, it is crucial to act fast and file an objection, also known as a caveat, to the petition filed with the incorrect information. This is a very time sensitive issue, as the court only allows for a limited time period to object to a petition.

After you have filed an objection, depending on the facts of your specific situation will determine what the court might require next of you. If the Petitioner realizes their mistake and amends their petition the court might allow them to continue down the path of being appointed executor/administrator of the estate. However, if the Petitioner does not amend their petition to include all the rightful heirs you would need to move forward with either filling your own petition to be appointed executor/administrator, or you can request that the court determine the original Petitioner is not qualified to serve and an alternative administrator would have to be found. If there are no other family members willing to take on the position of being the estate executor/administrator, the court could appoint a county administrator to administer the estate. County administrators are court appointed attorneys hired to administer the estate, and they do charge the estate fees for their services.

Depending on the specific facts related to your personal situation will greatly affect the best way to move forward when this type of situation occurs. Our office always recommends speaking with a qualified probate attorney. Contact us for a free consultation. 

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.