Probating an Estate

June 4, 2025

Part One: Opening the Estate


I have often written that probate in Georgia is not the terrible ordeal that people fear in other states. However settling the affairs of a deceased person is real work. That process (commonly referred to as "probate") constitutes the administration of an estate. The probate of a will is complete once a probate judge has entered an order officially recognizing a document as the Last Will and Testament of the deceased and appointing an executor. Then the estate administration begins.


If there was no will then one of the legal heirs to the estate (those persons who are entitled to the decedent's property under the laws of inheritance) will normally ask the probate court to appoint him or her as administrator of the estate. The Georgia Probate Code refers to both executors and administrators together as personal representatives for purposes of the provisions that apply to them both equally. I will use that term for the remainder of this article.


The first task facing the personal representative, is to identify the assets and how ownership of them will pass. In Georgia there are basically four "classes" of ownership: joint tenancy with right of survivorship ("JTROS"), beneficiary designated assets (e.g. life insurance, IRA's, etc.), personally owned assets and those owned in a revocable trust.


The personal representative must safeguard the assets that were personally owned by the decedent or payable to his estate. Those assets are considered to be in the probate estate. That will usually involve taking custody of physical assets, closing the accounts for financial assets (and transferring them to an account opened for the estate) and obtaining appropriate insurance policies on structures (e.g., a home) and physical assets.


Only the assets in the probate estate change ownership under the supervision of the probate court. However for purposes of calculating any Federal Estate Tax all four classes of assets are considered to be "owned" by the decedent. Collectively they make up the "taxable estate." The personal representative can be personally responsible if he or she transfers all the assets of the estate before settling up with the IRS on the estate tax liability.


As of January 1, 2011, the taxable estate must exceed $5 million to generate a possible estate tax liability. This "exempt amount" will be applicable to estates of persons dying in 2011 and 2012. No estate tax is applicable to the estates of persons who died in 2010, unless the personal representative elects to be covered by the new law (passed just before Christmas, 2011). Before we get too far into 2013, tax lawyers are hoping that Congress will enact a law to extend the current estate tax system. A lot will depend on who wins control of the Senate and the White House in the 2012 election.


Even when no estate tax is due because of deductions and credits, a Federal Estate Tax return should be filed within nine months of the date of death when the "gross estate" exceeds the threshold amount.


A common misconception among people who establish "living trusts" is that, upon their death, all their property will be covered by that trust. That is only true to the extent that they formally changed the title of any asset to make the trust the owner, or the beneficiary of the property.


Similarly, jointly titled property is not covered by a person's will or trust after death if a right of survivorship was created so that the joint owner(s) received the deceased owner's interest. Without a right of survivorship, joint property is a "tenancy in common" and the decedent's interest will pass through the probate estate.


Finding the records of the decedent is an essential part of the personal representative's job. A checklist is helpful in this regard. The following items should be on any checklist: bank records, including check registers and canceled checks; mortgages and deeds; stock brokerage statements; stock certificates; life insurance policies; pension benefit statements; loan documents; income tax returns for the past three years; any prior gift tax returns; recent credit card statements; inventories and appraisals of valuable assets (e.g. art, jewelry, coins); burial plot contracts; motor vehicle titles; and insurance policies covering the home and personal property.


One consolation to the survivors is that they do not have to do all of this work on their own. The decedent's attorney and accountant can be of immense help in organizing the effort and providing expertise. However the first inheritance from the decedent will be the organization, or chaos, they have brought to their own affairs.


Part Two: Closing the Estate


The probate process culminates in the distribution of the estate's assets. If the personal representative of the estate is to completely perform his or her responsibilities, there must be a formal process of terminating the estate administration. Assuming the personal representative has completed the estate administration, a "petition for discharge" can be filed in the probate court to formally close the estate. When the personal representative is also the only beneficiary of the estate, this last court filing may not be necessary. I am going to discuss those situations where the personal representative must formally close the estate.


How long does it take to close an estate? The personal representative can start to close an estate as soon as six months after being appointed, if there is no federal estate tax return required and there is minimal income tax accounting to be done for the decedent or the estate. Since the tax collector has a priority claim, the personal representative has to resolve the tax situation first. After that the claims of other creditors of the estate must be addressed so the personal representative can give a good title to the assets transferred to the beneficiaries.


The estate administration starts with a "notice to creditors and debtors" being published in the newspaper by the personal representative for four consecutive weeks. By statute the estate must remain open for a four month period after the last publication of that notice so that creditors can present their claims to the personal representative for payment.


Under Georgia law the only way the estate's assets can be distributed so as to defeat the claims of creditors is after a petition in probate court by a surviving spouse and/or minor children for a "year's support." Georgia has a policy of protecting widows and minor children with the equivalent of a bankruptcy for a spouse/parent who dies with only enough assets to support his family for one year. For purposes of this discussion we will assume that the decedent's assets were sufficient to pay the claims of the creditors and the year's support petition was not necessary.


If the estate is open long enough to generate significant income on its assets, then the personal representative has the additional duty of filing a "fiduciary income tax return" for both federal and state taxes. Unless there is a waiver of the inventory and formal returns in the will or by all of the beneficiaries of an intestate estate (a decedent without a will), the personal representative must file reports with the probate court with details of the estate's assets, income and expenditures.

By this time you are probably thinking that the personal representative has a lot of work to do. Even when such court filings are waived by the terms of the will, the beneficiaries are entitled to an annual report from the personal representative completely accounting for the estate's activities.


The personal representative will have to make a decision whether to charge for all the work done in administering the estate. Roughly speaking, a "commission" of almost five percent of the probate estate's cash assets can be paid from the estate's assets to the personal representative without obtaining an order from the probate court . Often a surviving spouse or a family member will serve as personal representative without seeking any commission because of a sense of duty.


After using the estate's assets to satisfy the priority claims for medical bills (from the last illness), burial expenses, taxes, administrative expenses and debts, the personal representative should formally distribute the estate's remaining property. Legal title of any real property should be formally transferred by an executor's deed, whether to a purchaser for value or to a beneficiary of the estate. Delivery of other property should be acknowledged with a written receipt. Heirs/beneficiaries who receive any valuable assets should be given sufficient data to be able to determine their tax basis in those assets in case of future sale and resulting capital gains taxes.



Only by dealing with all of these details in a process that might take a couple of years to finish can the personal representative honestly file a petition for discharge and be released from their duties by the probate court. Both the personal representative and the beneficiaries need this closure, which is formally given only by the probate court's order granting that petition. This is another one of those instances where the job is not done until the paperwork is completed.

Person's hands writing with a pen on paper, close up. Ring on a finger. Documents are visible.

Do it Yourself Wills - Don’t

By Patrick Gibbs • February 8, 2026
A colleague of mine who had more than 50 years experience in the field of wills, trusts and estates once recounted to me his exchange with a prospective client who asked how good his will would be if he wrote it himself using online software. My colleague’s answer was that it would be a good will for an attorney because the attorney would make a lot of money cleaning up the mess after the client’s death. That may sound cynical, but there is a lot of truth in it. I have been asked to assist executors in probating about four or five wills that were written by (deceased) testators. I am still waiting to see one that did not create problems and/or a lot more work to probate in comparison to a professionally prepared will. The best you can say for a do-it-yourself will is that it provides a starting point for an attorney because it probably answers some major questions in advance of a client conference. But that unsigned will should be treated only as a tool for the preparation of a well-drafted will. Here are some of the reasons I don’t like “do-it-yourself wills”: 1. The online form was probably written for a national “audience.” Thus, all of the standard provisions that attorneys in Georgia (in my case) usually include are not going to be present. 2. It most likely does not include a specific grant of statutory powers to the executor. There is a prescribed method to allow the executor to independently administer the estate without requirements to obtain permission(s) or approval(s) from the probate court, but you must specifically refer to the section of the Probate Code providing that authority. 3. Contingent beneficiaries will not be adequately addressed. A lot of “simple wills” give everything to the spouse and, if there is no surviving spouse, then to children. But what if one child does not out-live both the testator and the spouse and some grandchildren/beneficiaries are minors? A well-drafted will most likely establishes a trust for those grandchildren, assuming disinheriting them is not an objective. 4. A lot of those off-the-shelf wills are not going to separately address tangible personal property. Who is it going to receive the “stuff” and how is it going to be divided if there is no surviving spouse? 5. The “blended family” situation with children from a previous marriage is a complicating factor and may easily be overlooked when referring to “my children.” Are the children of both spouses to be included in that phrase? 6. Non-probate assets such as life insurance and retirement accounts are controlled by beneficiary designations but if one is totally focused on the will, setting up primary and secondary beneficiaries for those assets (with appropriate provisions if there are minor children) can be overlooked. Sometimes they make up about half of the family wealth. 7. A will may not be the right estate planning tool for a person who does not have any close relatives. Imagine someone whose closest living relatives are cousins. The executor is required to notify those relatives in order to probate the will. That would be very difficult if their names and addresses are not known. In that situation using a well-drafted trust and appropriate beneficiary designations will be essential to an effective estate plan and the will should assume a secondary role. 8. The method of execution for the will-signing may be legally insufficient or create additional work to successfully probate the will. A will ends on the signature page with the signatures of the testator and the witnesses with the requisite language to show testamentary intent and a proper execution. However, any professionally drafted will is going to have a subsequent page with an affidavit signed by those three people before a notary that constitutes “proof” of the facts required when the will is offered for probate. No affidavit? Then, the executor must locate the witnesses and obtain a notarized document reciting all of those facts. That could be difficult if 20 years have passed since the will’s signing. 9. Other essential legal documents can be overlooked if one is fixated on doing a will and nothing else. A good estate plan should include an Advance Directive for Healthcare and a General Power of Attorney. Those documents designate an agent to manage medical and financial affairs if one is unable to do so because of legally incapacity or other reasons. Those documents should be based upon statutory forms and are therefore “state specific.” Is a website going to have separate forms for all fifty states? As the sergeant told the police officers on the TV show Hill Street Blues before they went out on patrol, “Be careful out there.” 

Understanding Estate Taxes and Inheritance Concerns in Georgia

January 15, 2026
Common Concerns About Estate Taxes Estate taxes are often a major concern for individuals beginning the estate planning process. Many people worry that a significant portion of their estate will be lost to taxes, leaving less for loved ones. These concerns are understandable, but they are often based on misunderstanding how estate taxes apply. How Estate Taxes Apply Under Georgia Law Georgia does not impose a separate state estate tax. However, federal estate tax rules may still apply in certain situations depending on the size of the estate. Because federal thresholds and rules can change, understanding the general framework helps individuals assess whether estate taxes are likely to be a concern. Inheritance and Beneficiary Considerations In addition to tax concerns, many individuals want to understand how inheritances are handled. Beneficiary designations, asset ownership, and planning documents all play a role in how property is transferred. Clear planning helps reduce uncertainty and ensures assets are distributed according to personal wishes. Why Estate Tax Planning Is Often Overestimated For many Georgia residents, estate taxes are not a significant issue due to federal exemption limits. However, planning still serves important purposes beyond taxes, such as clarity, efficiency, and protection for loved ones. Understanding the full scope of estate planning helps place tax concerns in proper context. Final Thoughts Understanding estate taxes and inheritance concerns allows individuals to approach estate planning with realistic expectations. Addressing these topics under Georgia law helps reduce uncertainty and supports thoughtful planning decisions.  This content is for general informational purposes and does not constitute legal advice.

Estate Planning Myths Under Georgia Law

December 10, 2025
Why Estate Planning Myths Persist Estate planning myths are common and often lead people to delay or avoid planning altogether. These misconceptions are usually based on outdated information, assumptions, or stories shared without understanding how Georgia law actually works. Relying on myths instead of accurate information can result in unintended outcomes for families and loved ones. “I’m Too Young to Need an Estate Plan” One common belief is that estate planning is only necessary later in life. In reality, adults of any age can benefit from having basic planning documents in place, especially those who own property, have children, or want to control decision-making during incapacity. Unexpected events can happen at any time, making early planning a practical step. “I Don’t Have Enough Assets to Plan” Another misconception is that estate planning only applies to people with significant wealth. Estate planning is about more than asset value. It also addresses guardianship, decision-making authority, and clarity for loved ones. Even modest estates can benefit from thoughtful planning under Georgia law. “A Will Avoids Probate” Many people believe that having a will means probate will not be necessary. In Georgia, a will generally must be admitted to probate in order to be carried out. While certain planning tools may reduce probate involvement, a will alone does not avoid it. Understanding this distinction helps set realistic expectations. Final Thoughts Estate planning myths can create confusion and unnecessary delay. Understanding how Georgia law actually applies allows individuals to make informed decisions and plan with greater confidence.  This content is for general informational purposes and does not constitute legal advice.

What to Bring to Your First Estate Planning Meeting

December 3, 2025
Why Preparation Matters Preparing for an estate planning meeting helps make the conversation more productive and focused. While not every document must be finalized in advance, having key information available allows the discussion to move more efficiently. Preparation also helps individuals feel more confident and informed during the planning process. Personal and Family Information to Consider Estate planning often involves discussing family relationships and responsibilities. Information about spouses, children, and other intended beneficiaries provides important context for planning decisions. Understanding family dynamics can help ensure documents are structured appropriately. Financial Information That May Be Helpful While exact numbers are not always required, having a general understanding of assets and property ownership can be useful. This includes real estate, financial accounts, and business interests located in Georgia or elsewhere. Clear information helps ensure planning tools are matched to the nature of the assets involved. Questions and Goals to Think About in Advance Many people find it helpful to consider their goals before meeting with an attorney. This may include how assets should be distributed, who should serve in fiduciary roles, and what concerns they want addressed. Thinking through these topics ahead of time helps guide the discussion. Final Thoughts Preparing for an estate planning meeting does not require perfection, but thoughtful preparation can make the process smoother. Gathering information and clarifying goals helps ensure the meeting is productive and aligned with individual needs.  This content is for general informational purposes and does not constitute legal advice.

Updating an Estate Plan After Major Life Changes in Georgia

November 12, 2025
Why Estate Plans Should Not Stay Static An estate plan is not a one-time task. As life changes, estate planning documents should evolve to reflect new circumstances, relationships, and goals. Plans that are not updated may no longer function as intended under Georgia law. Even well-drafted documents can become outdated if they do not account for significant life events. Common Life Events That Trigger a Review Major life changes often affect how assets should be distributed or who should serve in decision-making roles. Marriage, divorce, the birth of a child, or the death of a loved one can all impact an existing estate plan. Changes in financial circumstances, such as acquiring property, starting a business, or retiring, may also require updates to planning documents. Risks of Failing to Update an Estate Plan Outdated estate plans can create confusion, unintended distributions, or increased court involvement. Beneficiary designations that no longer align with personal wishes may override planning intentions. In some cases, old documents may even create conflict among family members if expectations are unclear. How Often Plans Should Be Reviewed While there is no fixed schedule, many Georgia residents benefit from reviewing their estate plan every few years or after major life events. Regular reviews help ensure documents remain aligned with current goals and applicable law. Proactive updates are generally easier than addressing problems after they arise. Final Thoughts Updating an estate plan after major life changes helps ensure that personal wishes are accurately reflected and legally effective. Regular reviews support clarity, reduce uncertainty, and help families avoid unnecessary complications.  This content is for general informational purposes and does not constitute legal advice.

Planning for Incapacity Under Georgia Law

October 14, 2025
What Incapacity Planning Means Planning for incapacity addresses what happens if a person becomes unable to make financial or medical decisions due to illness, injury, or other circumstances. While estate planning often focuses on what happens after death, incapacity planning focuses on protecting individuals during their lifetime. In Georgia, incapacity can occur unexpectedly, making advance planning especially important. Why Incapacity Planning Matters Without clear legal authority in place, family members may need court involvement to act on behalf of an incapacitated loved one. This process can be stressful and time-consuming, particularly during medical emergencies. Incapacity planning allows individuals to designate trusted decision-makers in advance, reducing uncertainty and providing guidance during difficult situations. Common Documents Used in Incapacity Planning Legal documents such as financial powers of attorney and advance healthcare directives help outline who can make decisions and what authority they have. These documents allow personal preferences to be respected when individuals cannot speak for themselves. Having these documents in place helps provide continuity and clarity during periods of incapacity. Addressing Misconceptions About Timing Many people believe incapacity planning is only necessary later in life. In reality, adults of all ages can face unexpected medical situations that affect decision-making ability. Planning early helps ensure protections are in place regardless of age or health status. Final Thoughts Planning for incapacity is a key component of a comprehensive estate plan. Addressing these issues under Georgia law helps protect personal wishes and reduces the burden on loved ones during challenging times.  This content is for general informational purposes and does not constitute legal advice.

Common Probate Mistakes Families Make in Georgia

October 2, 2025
Misunderstanding How Probate Works One of the most common probate mistakes families make is assuming the process will be simple or automatic. In Georgia, probate is a legal proceeding with specific court requirements, timelines, and responsibilities. When families are unfamiliar with these steps, delays and frustration often follow. Probate can move quickly in some cases, but it may also take months or longer depending on the estate. Understanding that probate is a structured legal process helps set realistic expectations from the beginning. Relying on Incomplete or Outdated Documents Another frequent issue arises when estate planning documents are outdated or unclear. Wills that no longer reflect current family relationships, asset ownership, or beneficiary intentions can create confusion during probate. Even minor inconsistencies can require court clarification, which adds time and expense. Keeping documents current helps reduce complications when they are needed most. Underestimating the Role of the Personal Representative Serving as a personal representative involves more than carrying out wishes informally. Under Georgia law, executors and administrators have legal duties that include managing assets, meeting deadlines, and maintaining accurate records. When personal representatives are unprepared for these responsibilities, mistakes can occur that slow the process or create additional legal issues. Understanding the scope of the role is essential. Family Disputes and Communication Breakdowns Probate can surface underlying family tensions, especially when expectations are unclear. Disagreements over asset distribution or decision-making authority can lead to objections that prolong probate proceedings. Clear planning and communication during life can help reduce the likelihood of disputes after death. Final Thoughts Many probate mistakes stem from misunderstanding rather than neglect. By recognizing common problem areas, families can approach the probate process with greater awareness and preparation under Georgia law.  This content is for general informational purposes and does not constitute legal advice.

Understanding the Georgia Probate Process

September 10, 2025
What Probate Means Under Georgia Law Probate is the court-supervised process of administering an estate after death. The probate court oversees: Appointment of a personal representative Payment of debts and expenses Distribution of assets according to a will or Georgia law The process varies depending on estate size and complexity. Key Steps in the Probate Process While each case is unique, probate often includes: Filing documents with the probate court Notifying heirs and creditors Inventorying estate assets Resolving outstanding obligations Distributing remaining property Some estates move quickly, while others take longer. Factors That Affect Probate Timelines Probate timelines may be influenced by: Whether a valid will exists Estate size and asset types Creditor claims Disputes among beneficiaries Delays are not uncommon, especially when documentation is incomplete. Responsibilities of the Personal Representative The personal representative (executor or administrator) has fiduciary duties, including: Acting in the best interest of the estate Keeping accurate records Following court requirements These responsibilities carry legal obligations under Georgia law. How Probate Affects Families Probate can be an emotional process for families. Clear planning and understanding the process can help reduce stress and uncertainty during an already difficult time. Final Thoughts Understanding the Georgia probate process helps families prepare for what lies ahead. Knowing the basic steps and expectations can make navigating probate more manageable. This content is for general informational purposes and does not constitute legal advice.
Gavel on wooden block; judge in black robe writing on document.

When Probate Is Required in Georgia — and When It’s Not

August 13, 2025
What Is Probate? Probate is the legal process used to settle a person’s estate after death. In Georgia, probate generally involves: Validating a will Appointing a personal representative Paying debts and expenses Distributing remaining assets to beneficiaries Not every estate requires probate, but many do. When Probate Is Typically Required in Georgia Probate is often required when: Assets are titled solely in the deceased person’s name There is no beneficiary designation Real estate is owned individually A will must be formally administered In these situations, court involvement may be necessary to transfer ownership legally. Assets That May Pass Outside Probate Certain assets may pass outside the probate process, including: Assets held in a valid trust Jointly owned property with rights of survivorship Life insurance proceeds with named beneficiaries Retirement accounts with beneficiary designations Proper planning helps ensure these assets transfer efficiently. Common Misunderstandings About Avoiding Probate Many people believe probate can always be avoided. In reality: Some probate involvement may still be required Poorly drafted plans can increase complications Failing to update beneficiaries can create problems Understanding how assets are titled is critical. Why Knowing This Matters Knowing when probate applies helps families: Set realistic expectations Reduce delays and confusion Make informed estate planning decisions Clarity helps loved ones navigate the process more smoothly. Final Thoughts Whether probate is required depends on how assets are owned and how planning documents are structured. Understanding these distinctions under Georgia law is an important step in effective estate planning.  This content is for general informational purposes and does not constitute legal advice.
Man in suit and woman reviewing papers, both smiling, in a bright room.

Estate Planning for Families With Children in Georgia

August 6, 2025
Why Estate Planning Matters for Families With Children For families with children, estate planning goes beyond asset distribution. It also addresses guardianship, financial support, and long-term planning. Without a plan, Georgia law determines who may make decisions for minor children, which may not align with a parent’s wishes. Naming a Guardian for Minor Children One of the most important estate planning decisions for parents is naming a guardian. A guardian may be responsible for: Providing daily care Making educational decisions Overseeing health and well-being Including guardianship provisions in a will helps provide clarity and guidance. Managing Assets for Children Children generally cannot manage inherited assets on their own. Estate planning tools such as trusts may be used to: Hold assets until a child reaches a certain age Provide structured distributions over time Designate a trustee to manage funds responsibly These tools help ensure assets are used as intended. Planning for Unexpected Situations Estate plans can also address: Temporary guardianship Financial management during incapacity Healthcare decision-making Planning ahead helps families prepare for unexpected events. When to Review a Family Estate Plan Family estate plans should be reviewed when: Children are born or adopted Family circumstances change Financial situations evolve Regular updates help keep plans aligned with family needs. Final Thoughts Estate planning provides families with children an opportunity to plan thoughtfully for the future. Under Georgia law, having a clear plan helps protect children and provides peace of mind for parents.  This content is for general informational purposes and does not constitute legal advice.