Probate – Georgia Lawyers
Coleman Legal Group, LLC
Phone: 470-947-2471
Probating a Will
If you’ve recently lost a loved one and are feeling overwhelmed by the probate process, this article will help to dispel many common questions one might have about the probate process. In this article, we will uncover what probate entails, the different types or processes, and options to consider if your loved one was your spouse or parent.
Probate generally refers to the process by which a deceased person’s estate is handled when that person had a will at the time of their death. Each state handles this process differently.
The probate process generally requires eight steps: initiating probate proceedings, notifying interested parties, validating of the will, inventorying the estate, payment of debts and taxes if owed, distribution of assets to the beneficiaries provided for in the will, and finally closing the estate.
Initiating Probate Proceedings
In Georgia, the probate process is overseen by the Probate Court. See O.C.G.A. § 15-9-30. Probate proceedings begin when an interested party, typically a family member or executor, files a petition with the applicable probate court. Most often, the probate court that will oversee this process is located in the county where the deceased person lived at the time of their death but if a deceased person had multiple residences, then the probate court in the county where the decedent had the most significant ties (i.e. paid taxes, owned a home) will govern the transaction, thus giving the court jurisdiction over the deceased person’s estate. Once probate proceedings are initiated, the rest of the process will commence.
Notice to Interested Parties
Interested parties may include creditors, heirs, beneficiaries or anyone else with an interest in the decedent’s estate. In Georgia, interested parties are not required to be notified unless they are heirs or creditors. Creditors must always be notified when a will is probated. See our subsection on payments of debts and distribution of assets.
Solemn Form Probate
A solemn form probate petition is the most common method for probating a will in Georgia. Notice is required to be given to all heirs so that they might contest the will if they so choose. Once a will is admitted to probate in solemn form, the probate is final and binding on all parties after the appeal period ends. This form is especially advantageous when contests or challenges are anticipated. For solemn form petition requirements, see O.C.G.A. § 53-5-21.
Common Form Probate
A common form probate petition generally does not have an additional notice requirement before the will is admitted; because of this, common form probate is generally a quicker process but has a less binding effect on interested parties because without an additional notice requirement, interested parties have four (4) years after probate to contest. No hearing will occur unless there is a later contest. However, common form probate usually occurs when contest is not anticipated or all heirs or beneficiaries are cooperative. Common form requires the same information to be provided in a solemn form petition, but only a single subscribing witness’s testimony is used to prove the will. See O.C.G.A. § 53-5-17.
Georgia statues provide that the probate of a will may be in common form, solemn form or both. See O.C.G.A. § 53-5-15.
Validation of the Will
Georgia statutes have defined a will as a legal declaration of an individual’s intentions for their property upon their death. For a will to be valid and survive the third step of the probate process, that will must first be made by a person with sufficient capacity. This means that at the time the will was created the individual was at least fourteen (14) years old and of sound mind, or mentally competent and able to understand the effect of the will. The will must be in writing, either handwritten or typed. Signed by the person the will belongs to, otherwise known as a testator, or by a testator’s agent. The will must then be signed by two (2) competent witnesses in the testator’s presence after having witnessed the testator’s signature or acknowledgment of the will. Finally, the testator must intend for the will to be their Last Will and Testament. If all four (4) of the previously stated requirements are met, a valid will has been created, and a probate court will have sufficient cause to validate the will. See O.C.G.A. § 53-4-20.
It is important to note a significant Georgia distinction in the creation of valid wills. Although wills can sometimes be written, Georgia does not acknowledge holographic wills. A holographic will is a will that is written and signed by the testator without witnesses or notarization. Accordingly, an individual cannot, alone, create a will because witnesses are needed under Georgia law.
When a will is challenged, the challenging party often seeks to do so on grounds of improper execution of the will, which means one of the previously stated requirements was not met: the capacity of the testator, which references their age or state of mind, or the presence of undue influence, fraud, or mistake in the execution of the will.
A testator seeking to prevent conflict among beneficiaries may provide an in terrorem clause in their will. This clause may deter interested parties from challenging the validity of the testator’s will because doing so would void the distribution owed to the party seeking to challenge it.
Inventorying the Estate
An executor is a fiduciary agent that acts on behalf of the estate based on what has been supplied in the testator’s will. To inventory an estate, an executor will create a detailed and accurate list of the decedent’s assets and property at the time of their death. In creating this list, everything owned by the testator will be identified, collected, and valued.
The property subject to this accounting includes real property (homes and land), personal property (cash, cars, jewelry, furniture, etc.), bank accounts, investments, stocks, bonds, business interests, debts, and other valuables or intangible assets. This inventory and valuation is then filed with the probate court so they can assess the estate’s total value to ensure that debts are properly paid and property is distributed according to the will and Georgia law.
Payment of Debts and Distribution of Assets
Creditors typically have priority in probate; thus debts must be satisfied by the estate before assets can be distributed to beneficiaries. Wills are likely to say who must pay debts or taxes and from what source, whether that be from the residuary estate or some other source. The executor named in the will generally has an obligation to gather estate assets, notify creditors, pay valid debts and taxes, as well as to distribute what is left.
An executor must publish a “Notice to Creditors” in the county’s legal organ (journal or newspaper) once a week for four weeks and send direct notice to known creditors. See O.C.G.A. § 53-7-41. A creditor will then have three months from the date of the first publication to file their claims.
Generally, debts are to be paid in sequential order of priority. Year’s Support takes first priority. Please see our section on Year’s Support. Followed by funeral expenses, administration costs such as court fees, executor’s fees, and attorney’s fees, the decedent’s illness expenses, taxes, and other debt such as credit cards, medical bills, or personal loans.
Debts and taxes are typically paid from the residuary estate first. The residuary estate is the property left over after specific gifts in the will. However, if the residuary is not enough to pay debts and taxes, then an executor can sell estate assets, which may require court approval, use cash accounts, or liquidate investments. Specific gifts made in the will may also be sold to pay necessary debts. If the estate is insolvent, then there will not be additional funds left to distribute to the will’s beneficiaries.
If the estate is not insolvent and debts have been paid, then remaining general bequests, specific bequests, residuals, and other devises may be paid or given to the will’s beneficiaries. Once the executor has finished their duties, such as paying debts and taxes, distributing assets, and filing any required paperwork, such as tax returns or final accounting, the executor’s role is complete, and they may stop acting in their capacity as executor, although the executor will remain liable for future claims unless the estate is closed.
Closing the Estate
Closing the estate may occur through a petition for discharge filed with the probate court. See O.C.G.A. § 53-7-50. Such a petition requires the executor to show that all debts or taxes have been paid, distribution has been made to beneficiaries, receipts, releases, or proof of notice from all beneficiaries have been provided to the court. Once received or shown, a court will issue an order of discharge.
Estates may be closed through less formal means if all beneficiaries sign a written release and receipt, and there are no current disputes. Accordingly, a court may issue a discharge without a hearing provided that the receipts and releases have been provided to the court along with a short closing statement.
Year’s Support
Unique to Georgia, Year’s Support is a special probate proceeding that allows a surviving spouse or minor children to claim some or all of the decedent’s estate for their financial support for the twelve (12) months after the decedent’s death. Financial support may be comprised of money, real estate, vehicles, other personal property, or even the whole estate if the court deems it necessary to provide support for twelve (12) months. However, modern Georgia law may allow it to operate as a means to transfer significant estate assets outright, well beyond basic living needs. Unlike a normal will’s bequest or distribution, Year’s Support will take priority over creditor claims. Notwithstanding this, perfected liens and debts where the party seeking Year’s Support is personally liable may still be owed following such an award.
Year’s Support may be available for surviving spouses or minor children under the age of eighteen (18) years old. If a decedent has left behind a surviving spouse and minor child, Year’s Support may be filed separately or jointly. Years’ Support may be expressly disclaimed in a testator’s will, but even so, it is still likely to be awarded. Courts are likely to favor the spouse and/or child when determining whether to award Year’s Support.
Under O.C.G.A. § 53-3-5, a petition must be filed within two (2) years of the decedent’s death even if the surviving spouse has since remarried. The petition must include all estate property and specifically identify property sought as Year’s Support. The petition must be filed in the probate court of the county where the decedent was domiciled, and notice must be given by personal service, publication in the county’s legal organ once a week for four weeks, or certified mail on all heirs and interested parties.
An heir, beneficiary, or creditor may object to the amount or type of property requested. If Year’s Support is objected to, then a hearing will likely be held to determine the reasonable support amount based on the petitioner’s standard of living, the estate’s total value and liquidity, other sources of income for the spouse and/or child, ongoing financial obligations, and whether the request is reasonable or excessive.
If Year’s Support is granted, the property awarded will be owned outright by the petitioner, and it will not pass through the normal probate distribution process, which can drastically reduce or eliminate what other heirs receive.
Probate, Wills, Estate Planning and Administration – Georgia Areas We Serve
Our Georgia Estate Planning attorneys handle cases in the following cities and communities: Atlanta, Alpharetta, Roswell, Duluth, Johns Creek, Milton, Cumming, Suwanee, Marietta, Woodstock, Sandy Springs, Kennesaw, Gainesville, Midtown Atlanta, Norcross, Lawrenceville, Kennesaw, Duluth, Buckhead, Dunwoody, Vinings, Smyrna, Buford, Inman Park, Old Fourth Ward, Decatur, Grant Park, East Atlanta, and the Virginia Highlands.
Our Georgia Estate Planning attorneys frequently handle cases for clients residing in the following counties: Fulton, Gwinnett, Forsyth, Cobb, DeKalb, Henry, Cherokee, Douglas, Carroll, Coweta, Paulding, Bartow, Hall, Barrow, Walton, Newton, Rockdale, Henry, Spalding, Fayette, and Clayton.
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Georgia Areas We Serve
Our Georgia lawyers and attorneys handle cases in the following cities and communities: Atlanta, Alpharetta, Roswell, Duluth, Johns Creek, Milton, Cumming, Marietta, Woodstock, Kennesaw, Gainesville, Midtown Atlanta, Norcross, Lawrenceville, Kennesaw, Duluth, Buckhead, Dunwoody, Vinings, Smyrna, Buford, Inman Park, Old Fourth Ward, Decatur, Grant Park, East Atlanta and the Virginia Highlands.
Our Georgia lawyers and attorneys frequently handle cases for clients residing in the following counties: Fulton, Gwinnett, Forsyth, Cobb, DeKalb, Henry, Cherokee, Douglas, Carroll, Coweta, Paulding, Bartow, Hall, Barrow, Walton, Newton, Rockdale, Henry, Spalding, Fayette and Clayton.
Our main office is located in Alpharetta Georgia at: 11539 Park Woods Circle, Suite 304, Alpharetta, GA 30005.
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Updated: 2025-08-14
