Probate is the legal process by which a decedent’s property is transferred to those entitled to receive it. All real property that does not transfer by means of a survivorship interest or a recorded transfer on death deed, or property held in a trust, is subject to probate.
Petition to open probate should be made in the county in which the decedent was domiciled at the time of death. When there is a will, probate may be opened in either solemn form or common form, the difference being the requirements to furnish notices and the ability to contest the procedure after the final order.
The probate court appoints a personal representative to administer the decedent’s estate. The umbrella term “personal representative” includes both executors and administrators. Executors are those designated by a decedent’s will to administer the estate, and administrators are those appointed by the probate court when there is no will or there is not designation made in the will. A decedent who dies with a will is said to have left a testate estate, and a decedent who dies without a will is said to have left an intestate estate.
To authorize the personal representative, the court issues letters. These are letters testamentary, when issued to an executor, or letters of administration, when issued to an administrator. A personal representative uses the letters to confirm their authorization to act on behalf of the estate to accomplish fiduciary duties, such as marshalling the decedent’s assets, paying the estate’s debts, and distributing the estate to beneficiaries (those named in a will) or heirs (an intestate decedent’s next of kin).
To distribute a decedent’s real property, executors in Georgia use an assent to devise. Per Georgia statute, title to property of an estate “does not pass to the heirs or beneficiaries until the personal representative assents thereto in evidence of the distribution of the property to them” (OCGA § 53-8-15). The form is recorded with the land records in the county where the subject property is located, providing evidence that title has passed to the decedent’s heirs or beneficiaries. Deeds of assent or distribution are exempt from real estate transfer tax (OCGA § 48-6-2).
Sometimes, a personal representative may be required to sell estate property pursuant to the terms of a will, to pay the estate’s debts, or to consolidate an estate that will be split among multiple beneficiaries or heirs. Personal representatives have a statutory power to “sell, rent, lease, exchange, or otherwise dispose of property…for the purpose of payment of debts, for distribution of the estate; or for any other purpose that is in the best interest of the estate” (OCGA § 53-8-10). To do so, the personal representative files a petition with the probate court, with notice given to heirs or beneficiaries (§ 53-8-13). To accomplish a conveyance of real property following sale, the personal representative uses an administrator’s deed or an executor’s deed, depending on their role.
Available Georgia Probate Documents:
Consult a lawyer to advise you through the probate process in Georgia. Each situation is unique.