Is Probate and/or Estate Administration Necessary for My Loved One’s Estate?
Quick Answer
It depends entirely on how the assets were owned. Probate is generally required for anything held in your loved one’s name alone with no beneficiary and no joint owner. It is often not required where everything passed by beneficiary designation, survivorship, or a funded trust. Answer this question first, because it determines everything that follows.
The question worth answering before any other
Families arrive assuming probate is inevitable, and a meaningful number of them do not need it at all.
Working this out early is the difference between a short administrative task and a year-long process, and it is a single afternoon’s work with the right list in front of you.
When probate is generally required
Assets owned solely in the decedent’s name, with nobody else on the title and nobody named to receive them.
A bank account in their name only. Real estate titled to them alone, or held as tenants in common. A vehicle in their name. Personal belongings of real value. A business interest. An account whose named beneficiary died first and was never replaced.
Also where there is a will that needs to be proved, or where a dispute exists among heirs, or where creditors need the formal claims process the court provides.
When probate is often unnecessary
Where everything passed automatically.
Life insurance and retirement accounts with a living named beneficiary. Bank accounts with payable-on-death designations. Brokerage accounts with transfer-on-death. Property held as joint tenants with rights of survivorship. Anything titled in a properly funded revocable living trust.
Where all of it fell into that category, there may be nothing for a probate court to do.
Georgia’s simplified routes
Georgia offers alternatives that families are frequently never told about.
Petition for Year’s Support, available to a surviving spouse or minor child, which in the right circumstances is dramatically faster and cheaper than full administration and can take priority over most unsecured creditors.
No administration necessary, where the heirs agree and there are no unpaid debts.
Whether either fits is exactly the kind of thing worth one short conversation before anybody files anything.
The will still has to be filed
This catches people. Even where no probate is needed, Georgia law requires the original will to be filed with the probate court in the county where the person lived. It is called placing the will on record, and it does not start probate.
Do not skip it, and do not keep the original in a drawer because probate seemed unnecessary.
How to work it out
Make a list of everything, and beside each item write how it was titled and whether a beneficiary was named.
Anything with a living named beneficiary, a surviving joint owner with survivorship, or trust ownership goes in one column. Everything else goes in the other.
If the second column is empty or trivial, you may be finished. If it holds the house or the main account, probate is likely.
What it costs to guess wrong
Assuming probate is needed when it is not means months and fees for nothing.
Assuming it is not needed when it is means transfers that never legally happened, a house that cannot be sold years later because title never cleared, and a much harder cleanup than doing it properly at the time.
Your next step
Bring your list to a complimentary 15-minute Strategy Session at 404-549-5001. Working out whether probate is required is usually a short conversation and it changes everything that follows.
More on how we support families is on our Probate & Estate Administration page.
Related questions
- What is the difference between probate assets and non-probate assets?
- What is a Petition for a Year’s Support and when can you use it?
- If we do not have to file probate, what should I do with the original will?
- What are the first steps to take after the death of a loved one?
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!
