In my experience as a Georgia probate attorney, I’ve noticed many people are confused by the terms “probate” and “administration” because they often are used interchangeably, even by legal professionals, but their meanings are different. The reason for the confusion likely is caused by the two most common methods for opening an estate: (1) a petition to probate a Will and (2) a petition for letters of administration. Both petitions result in the appointment of a person to manage an estate, but they are very different in nature.
Probate is the process by which a Last Will and Testament is proved to the probate court. When a deceased person leaves a Will, an interested party usually will file a petition to probate the Will in the probate court in the county where the deceased resided at the time of death. Typically, the person nominated as executor in the Will does this.
The petition to probate the Will is actually a request made to the court to declare the Will valid. Before the court will do so, it will notify all heirs-at-law of the deceased that the petition has been filed so that the heirs-at-law have an opportunity to review and caveat the Will (i.e., object to the probate of the Will). Reasons for objection vary, but the two most common reasons are lack of capacity of the deceased at the time the Will was made and undue influence of the deceased in the making of the Will. If no objections are made, or if objections are made but ultimately dismissed, the Will is deemed “proved,” the executor is appointed, and the administration of the estate begins.
A petition for letters of administration is filed where no Will exists. It simply is a request to the court to appoint someone administrator of an estate. Typically, the petition is filed by an interested party (i.e., someone who will receive some benefit from the estate), and the petitioner typically requests to become the administrator. Most often, the petitioner is a relative of the deceased.
As with a petition to probate, the court will notify all heirs-at-law of the deceased that the petition has been filed. Usually, the only objection to be made to a petition for letters of administration is the lack of qualification of the proposed administrator. If the court determines the proposed administrator is qualified, it will issue letters of administration to such person, and the administration of the estate begins.
The term “administration,” standing alone, refers to the actual management of the estate, which is conducted either by an executor or administrator and which occurs only after probate is complete.
If you need advice with regard to a petition to probate or petition for letters of administration, or if you have questions about the administration of an estate, please email me or call me at my Atlanta probate law firm at 404-467-8613. I look forward to helping you.
