Probate is the legal process that essentially proves whether a will is valid, then ensures that creditors are paid, and beneficiaries receive their inheritance. Probate can be a costly and lengthy process, yet it is legally required, both for estates where a will is present as well as for estates where there is no will. If there is no will, the person is said to have died intestate and the property will be distributed according to state laws. If the deceased leaves a will behind, the probate court will officially allow the executor named in the will to begin the process.
What is the Probate Process?
Generally speaking, the validity of the decedent’s will must be proven in court, the executor officially appointed, and the property identified, inventoried, and appraised. All debts and taxes are paid, then the property remaining is allocated to beneficiaries, according to the decedent’s wishes. This process involves lawyers and courts and can take months or even years to complete. If the decedent left to will, the probate court will appoint an estate administrator or executor. This is usually a close family member deemed responsible by the court to handle the probate proceedings.
Is Probate Always Necessary?
In the state of Georgia, there are certain exceptions to the probate requirements. If a person left a Living Trust, then no probate is necessary, although there are often assets that may not be disposed of through a Trust. If the heirs of an estate are in agreement with the distribution, the decedent left no will, and there are no outstanding debts, then probate can possibly be avoided under Georgia Code Section 53-2-1. This allows probate to be skipped, however, the distribution of all the decedent’s property must be included.
Probate can also potentially be avoided when a beneficiary is named outside the will. This is only possible for bank accounts that may have a payable on death beneficiary, an asset that has a transfer on death deed, or a life insurance policy that names a beneficiary. Retirement accounts and even vehicles may have a payable on death or transfer on death listed. Assets owned jointly with another person do not have to go through probate and in states that operate under community property laws, the property may automatically be passed on to the surviving spouse.
If you are married—even if you and your spouse are estranged—your spouse is entitled to one-third of your estate. If you have a pending divorce at the time of your death, or are divorced, then the spouse no longer has any legal rights to your estate. If you do not have a will and have minor children, those minor children are entitled to a portion of your estate.
What if I Was Left Property That is Now Under Probate?
Perhaps you were promised a certain property by a parent or other relative. You might think this automatically makes the property yours, but this is not necessarily true. If the decedent left a will, bequeathing you the property, then when probate is complete the deed to the property would be transferred to your name. This is unless the decedent had so many outstanding creditors and/or taxes, in which case, the home might have to be sold in order to pay these expenses.
Selling a home or property in probate is a much different procedure than selling a house in a normal manner. When a property in probate is sold, each step of the process is closely regulated by the probate court. Usually, in such a situation, a real estate probate agent will be assigned to sell the home or property. If there are personal belongings left in the home or on the property in question, these belongings will either be distributed to the decedent’s closest family members or sold at auction and the proceeds distributed to the family members.
What if I Want to Buy Property That is Under Probate?
If an individual dies in the state of Georgia with no will or trust, the state will take over. It could be that property must be sold, including a home. The court wants to ensure the property is marketed and sold for the best possible prices. The price of the home or other real estate will be based on the listing agent’s suggestions, along with a court-ordered independent appraisal. Interested buyers can make an offer on the property which must be accompanied by a 10 percent deposit.
Your offer is subject to the court’s confirmation after the probate attorney petitions the court to confirm the sale. If your offer is accepted and a sale date is determined, you will then wait a minimum of 30-45 days. At the end of the waiting period, you must appear in probate court to confirm the sale. In some cases, the property is then sold auction-style with the opening bid being your accepted offer price plus a 5 percent increase. If nobody else shows up to bid, you would get the property for your original offer price. It is usually wise to have the property inspected before you submit an offer.
Call Our Experienced Atlanta Probate Attorneys
At Hobson & Hobson, P.C., our Atlanta probate attorneys know how complex and time-consuming probate can truly be. That’s why we work to establish family planning and estate documents that prevent probate whenever possible. If your property or estate does go through probate, we will be there with you every step of the way.
If you have questions regarding your specific case, call us today at (770) 284-6153 or fill out our confidential contact form. We can set up a consultation, so you can review all your legal options.
Attorney Sarah Hobson at Hobson and Hobson, P.C. are powerful advocates for those who fight for better futures for those going through divorce and custody law matters.
