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 you’ve recently lost a loved one and they did not leave a will, you’ll still have to sit and discuss estate matters with your family.
Estate refers to the property, money, belongings, and other possessions of the deceased person.
During this conversation, you might work through questions like:
This article will attempt to simplify this topic, give clarity, and answer some of the most pressing questions you likely have about estate administration.
So, let’s begin.
To avoid possible conflicts after the death of a loved one, one person needs to be officially in charge of handling the estate of the decedent.
Starting a probate proceeding can facilitate this process, and once the decision has been made to begin probate, it can take 3-6 months to officially open the estate, depending on the county.
During this time, the individual named on the will — an Executor — will be authorized to administer the estate and determine how assets will be distributed.
But if a person dies without a will (what we call intestacy) or if the executor declines their duties, no one will be authorized to manage the deceased’s affairs. In this case, the Probate Court will appoint someone to handle the decedent’s estate.
When there is no will, a court order will be issued, officially appointing someone to represent the estate. This document gives the nominated administrator the authority to collect assets, work with creditors and take action on behalf of the deceased person’s estate.
Without this document, no one has any power to take action on behalf of the estate whatsoever. Financial institutions will not be able to speak with you, and you may not have the authority to transfer or sell property, including the estate home.
First, make sure that the deceased did NOT leave a will. Then, you must file an appropriate petition in the Probate Court to begin the process.
It depends on the county, but in a situation where there are no disputes and all initial paperwork is filed correctly, you may receive the documentation within 3-6 months of filing.
If the deceased did leave a will, you would receive a different order called Letters of Testamentary. Letters of Testamentary will allow you to act on behalf of the decedent and manage tax-related matters.
Executors and administrators share the same responsibilities, but these two roles are assigned differently.
An Executor is someone the deceased named on the will to handle their estate affairs. The named executor will be required to manage the Estate, pay debts, and distribute the estate’s remaining assets to beneficiaries.
An Administrator, on the other hand, is someone that the Probate Court appoints if one of the following is true:
Temporary administrators have minimal abilities but are often quickly assigned because of emergencies (e.g., imminent property foreclosure).
Although in certain situations it may be beneficial to file to become a temporary administrator, there are a few drawbacks:
There may be a time limit on how long the temporary administrator can serve before they have to file for permanent letters.
They have minimal authority and can only take action to protect and preserve estate assets and nothing else.
They may be required to serve with a bond and submit inventory and annual income tax returns.
When a Permanent Administrator is officially appointed, they will have certain powers and greater flexibility in administering the Estate.
If you’re wondering what an estate administrator should do, their typical duties include:
If there is no will to identify the assets of the estate, the Administrator may have to comb through the personal files and financial records of the deceased to gather all the necessary information.
Any individual who would like to petition to become the Administrator may do so, but the most common choices are typically a surviving spouse or a next of kin.
The scope of an estate administrator’s authority is huge. They can determine how to settle the decedent’s Estate and how assets of the Estate should be distributed. For example, they may choose which assets to sell and which to hold for later distribution to the heirs.
Candidates below the age of 18, corporations, and a person with a questionable background (e.g., criminal record) are generally not eligible. Ultimately, the Probate Court gets to decide within its discretion who will be appointed for this position.
If all heirs make a unanimous selection, the Probate Court will often nominate that person as the Administrator. Otherwise, the Probate Court will appoint the person it feels will best serve the interest of the Estate.
States base their selection on various criteria, but the court generally uses this priority list as guidance:
Keep in mind that the Probate Judge is not required to follow this list and has a wide range of discretion to appoint the person they feel is best for the estate.
If you do not trust the appointed person or believe that are unfit to fulfill their estate duties, one consideration could be to file a legal objection.
Yes. Although the spouse or a family member is often chosen as administrator, other people can apply as long as all heirs approve. If the heirs cannot make a unanimous selection, the Probate Court may step in and make a final decision to appoint an Administrator of the court’s choosing. The Probate Court may also consider appointing a County Administrator.
Other entities like guardianship agencies (if the deceased was incapacitated) and creditors may also be considered.
If you have any reservations about the person petitioning for the role, you may want to consider filing a legal objection. Beyond this period, the court may proceed to authorize them to administer the estate.
Filing an objection requires a legal basis and there are many different options to consider for the legal objection. It is best to speak with your attorney on what objection may be best for your situation.
If you claim that someone is unfit, you will be required to submit evidence to support it. If priority is the basis of your objection, that means someone else ranks higher on the priority list under Georgia Law and should be considered first for this position.
Once an administrator is appointed, they will be compensated based on the quality of their work, and the amount they receive will depend on the state and the size of the estate.
To receive their compensation, they will be required to fully account for their expenses and time spent doing the work.
Estate administrators are accountable for the following involved parties:
Administrators must satisfy the Estate’s creditors before distributing assets to the beneficiaries or anyone entitled to the Estate. In Georgia, a priority system dictates which creditor should get paid first, and the Administrator must follow it in the correct order.
If the Administrator fails to pay the deceased’s creditors or follows the list in the wrong order, they will be personally responsible for satisfying the creditor.
Keeping an accounting of estate assets and liabilities is one of the responsibilities of an estate administrator.
If an heir or beneficiary feels the appointed administrator is not being transparent, they may file with the Probate Court to request a detailed accounting from the Administrator.
If the Administrator mismanages the assets of the Estate, the beneficiaries may petition to have them removed from their position or personally reimburse the Estate.
The will should determine the beneficiaries entitled to the assets of the estate, but if there isn’t one, the state’s intestacy laws will apply.
The estate administrator will take an oath once they are appointed to their position.
The Probate Court may request them to file paperwork, such as an inventory or accounting, to show the progress of the estate. If the Administrator fails to comply, the Probate Judge may request a hearing or even remove them for failing to provide the necessary information.
The estate administration process can be very tedious, especially if you’re unsure what questions to ask and in what order.
If you need clarification from a probate lawyer, please go to GPLG.com/Handbook to download a complimentary copy of our Georgia Probate Handbook. Contact our office at (770) 796-4582 to set up a consultation.
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