Probate means the proving of a Last Will and Testament by a court of law. When a person who has made a Will (a.k.a. testator) dies, his Will must be presented to the probate court and proved to be valid. Once a Will is “admitted to probate,” or proved, the probate process is completed. The next steps are the appointment of the executor nominated in the Will and then administration of the estate of the testator according to the terms of the Will.
The probate process in Georgia is simple compared to many other states, but it is not without its pitfalls. Typically, the person nominated Executor in the Will presents the Will to the probate court with a petition to probate. There are two ways to probate a Will in Georgia: common form and solemn form.
Common form is used when (1) there is an immediate need for the appointment of a personal representative (e.g., a house in an estate will be foreclosed unless someone with authority to act on behalf of the estate intervenes) or (2) there are problems anticipated with providing notice to all of the heirs-at-law of the decedent. While it is easy to open an estate using common form probate, the Will and the appointment of the executor remain open to challenge much longer. To eliminate the possibility of such a challenge in the future, most people prefer to use solemn form, and we recommend solemn for be used whenever possible.
Solemn form is used when the petitioner (most commonly the nominated executor) has the time to complete the petition process and desires finality with regard to the validity of the Will. Solemn form probate requires that all heirs-at-law of the decedent be notified of the petition, receive a copy of the petition and Will, and have an opportunity to object to the Will or to the appointment of the executor. In most cases, the heirs-at-law are few and can be contacted easily, and usually they will consent to the probate of the Will. In such cases, the petitioner can obtain their written consents and be appointed executor upon filing the petition with the court.
However, the solemn form process can be delayed for various reasons, some of which are: (1) lack of heir contact information; (2) lack of certain waivers in the Will; (3) lack of a self-proving affidavit; (4) failure of any heir to consent; (5) existence of minor beneficiaries; and (6) availability of only a copy of the Will. Each of these situations will affect the probate process differently, and different probate courts will handle the same situation in different ways, so it helps to have some assistance.
Our firm has handled will probates all over metro-Atlanta and throughout Georgia and has the experience to anticipate and resolve problems at the beginning of the process rather than waiting for the court to tell us what is wrong. If you need to probate a Will and have questions, please call us or send us an inquiry.
