If we do not have to file probate, what should I do with the original will in effect at the time of the decedent’s death?

Quick Answer

File it with the probate court anyway. Georgia law requires the original will to be filed in the county where the person lived, even when no probate is opened. It is called placing the will on record. It does not start probate, it costs very little, and failing to do it can cause real problems years later.

The step almost everybody skips

A family works out that probate is not required. Everything passed by beneficiary designation or survivorship. There is relief, and the folder goes in a drawer.

Now realize what Georgia asks of you regardless. The original will is supposed to be filed with the probate court of the county where your loved one resided.

Placing it on record is not probate. Nobody is appointed, no creditor process begins, no estate is opened. The court simply holds the original where it can be found.

Why the law wants it

A will is a public record once its author has died, and the probate court is the place that record lives.

It protects against the document being lost, destroyed, or quietly set aside by whoever happened to be holding it. And it means that if something surfaces later, there is an authoritative original rather than a photocopy of uncertain provenance.

The problem that shows up years later

This is not theoretical, and it is the reason I press families on it.

Assets appear after the fact more often than people expect. An old account nobody knew about. Mineral rights. An unclaimed property listing. A class action settlement covering something that happened decades ago.

We once had to open a probate estate for a grandmother fifty years after her death, because a class action opened relating to conditions at the base where she had lived as a military wife. She died in 1972. The claim arrived half a century later, and pursuing it meant opening an estate.

When something like that happens, the family needs the original will. If nobody knows where it went, the estate may be administered under intestacy instead, distributing to a family tree rather than to whoever the will named.

What to do

Take the original, not a copy, to the probate court in the county where your loved one lived. Ask to place the will on record. There is usually a modest filing fee.

Keep a copy for your own records, along with the court’s receipt.

If you cannot find the original and only have a copy, tell us, because Georgia has a process for that situation and it is more involved than filing an original.

While we are on it

If you are the one whose will it will be one day, do not hide the original. A safe deposit box that nobody else can open is a common and unhelpful choice, because access after death can require a court order.

Tell your executor where it is. That is the whole security system.

Your next step

If a loved one has died and you are unsure what to do with the original will, schedule a complimentary 15-minute Strategy Session at 404-549-5001.

More on the process is on our Probate & Estate Administration page.

Related questions

• Is probate and/or estate administration necessary for my loved one’s estate?
• What are the first steps to take after the death of a loved one?
• Do I need a trust?
• What is a will?

This page is presented for educational purposes only and nothing on it should be treated as legal advice. What applies to you is very fact specific to your situation and your family. Our attorneys are licensed in Georgia and Michigan. This area of law has frequent statutory and policy changes.

   

Looking to find an experienced estate lawyer in the Georgia area who is skilled in asset protection and estate plan preparation? Shannon Pawley is an attorney in Georgia with expertise in estate planning and asset protection. Shannon can provide assistance with creating an estate plan to include making a will and how to establish a trust properly. If you have questions about asset protection or questions about making an estate plan, reach out to Shannon and she will be glad to help answer all the estate planning questions you might have!