Probate: Understanding the Complex Elements in the Process

The term probate is the last of the four most complex elements in the estate-planning process as explained by Georgia probate and guardianship lawyer. It is the part of the process that involves the administration of a person’s property after his death. In most states, there are three phases to the probate process: assignment of probate, administration, and distribution of probate proceeds. These three steps are typically referred to as being the last chapter in an estate-planning experience. The probate process may also involve any number of court hearings, such as affidavits, depositions, conference calls, court hearings, and even mediations.

One of the most significant aspects of the probate process is that it names an executor. An executor is generally an attorney or a qualified trust officer selected by the decedent. He is responsible for the safekeeping of the decedent’s estate, as well as making sure that all of the decedent’s assets are properly assigned to beneficiaries. While the appointed executor does not have the right to make decisions on behalf of the estate, he is responsible for distributing the funds and distributing them in accordance with the directions of the court.


Who are the executors? In most states, there are a limited number of people who are allowed to administer the probate process. Generally, those who are related to the decedent, including his/her parents and grandparents, can administer the estate. However, anyone not related to the decedent must appoint a personal representative, such as a guardian, executor, or a trustee, in order to oversee the distribution of the estate. If there are other adult children, these children may be listed as beneficiaries.


Who are the creditors? The individual who is owed money, either directly or indirectly, by the decedent includes creditors. Usually, these creditors are considered secondary owed and do not qualify to be creditors themselves. However, in some states, all of the debts and the beneficiaries of the debts may become creditors, depending on the state’s probate process. If the state has appointed an executor to handle the assets, this person will become the primary creditor.


What are the debts? There are many different types of debts and each must be repaid before distribution of the probate proceeds can occur. These debts include mortgage, credit card accounts, car loans, IRS refunds, and child support. The court will decide what debts must be paid off first and will assign an executor to work through the settlement process to pay these off first.


What are the last will and testament? The last will and testament is a document that is used to express the final wishes of the decedent regarding his/her affairs. It will name an individual (the executor) who will handle all property owned by the decedent and account for it in the proper manner. The last will and testament will also specify who will be responsible for Georgia probate and guardianship attorneypaying personal property taxes, licensing fees, and any other debts of the decedent.


Who are the beneficiaries? The beneficiaries are the people who will be entitled to receive inheritances if there are any. Usually the person who is closest to the decedent is named as beneficiary. If there are no immediate family members, then the next in line is the next of kin, followed by the surviving spouse, children, and then, if there are no children, the parents. If there are more than one heir, then the estate will divide among the beneficiaries.


Are a last will and testament necessary? No, it is not necessary, but it can make the process go much smoother and may help avoid some problems later on. In some cases, the executor might not be able to administer the probate process without the last will and testament being prepared. In this case, it may be wise to consult a qualified attorney who can assist you in filling out the document. An attorney will also be able to answer any questions that may arise after the decedent’s death.

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