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Your Loved One Has Passed Away – What Do You Do Now?

By David L. Walker, Jr.

As many of us know all too well, losing a close family member or friend is an absolutely gut-wrenching experience. The days that shortly follow a loved one's death often prove to be a whirlwind of confusion, despair, decision-making, and heartache; yet, as more days and weeks pass, survivors must confront the task of putting their lives back together and moving forward. When they are ready to take that step, one of the first processes they must become acquainted with is probate.

In Georgia, probate is the statutory mechanism for transferring property from a decedent's estate to his or her surviving heirs or beneficiaries. The first question that must be answered is whether the decedent had a valid Last Will and Testament. If so, he or she is deemed to have died "testate" and the Will's terms will most likely govern who are selected as the Executor and beneficiaries of the estate. If on the other hand the decedent died without a Will, he or she is deemed to have died "intestate" and Georgia law will determine who will be the administrator and heir(s) of the estate.

Whether the decedent died testate or intestate, the survivor(s) will need to file a petition with the probate court in the county where the decedent last resided. Among other things, the petitioner(s) must: (i) inform the Court whether the decedent died testate or intestate, (ii) provide a death certificate for the decedent, (iii) identify the lawful heirs of the estate, (iv) nominate an administrator for the estate, (v) and if the decedent died testate, the petitioner(s) must include a copy of the Will being offered for probate.

In addition to filing a petition with the Probate Court, the survivors must ensure that notice is provided to the lawful heirs of the estate, and that legal notice is issued for all potential creditors. The Court will appoint an attorney ad litem for any heirs who have not reached the age of majority, and determine whether the administrator will be required to post a bond for the estate. The Court will also conduct its own evaluation of the estate and determine, among other things, who is qualified to be its administrator. This process may or may not require a hearing and presentation of evidence to the Court.

Once an administrator has been appointed by the Court, he or she must take an inventory of the estate to identify and assemble its assets and liabilities. Depending upon the size and complexity of the estate the Administrator may be required to obtain assistance from attorney(s), accountant(s), appraiser(s), or other professionals to complete the administration. Once the liabilities of the estate have been satisfied, the Administrator will be required to distribute any remaining assets from the estate to the decedent's designated beneficiaries or heirs at law.

Although this article does not provide a comprehensive explanation of the intricacies of the probate process, it is nonetheless designed to give survivors of a decedent a "starting point" from which they can begin the task of recovering after tragedy has struck. If you or someone you know has been confronted with the need to probate an estate and you have additional questions regarding the process, please feel free to give one of the attorneys at Flint, Connolly & Walker, LLP a call to discuss your situation.

David L. Walker, Jr. is a partner in the law firm of Flint, Connolly & Walker, LLP where he represents businesses and individuals in various legal matters.

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