How to Probate a will with a house in Georgia

**This article is for informational purposes only. This is NOT legal advice**

Most people don’t know how to probate a will in Georgia. In today’s society, the probate process is one of the last topics still considered taboo, even though it is a regular part of life. This means a lot of heirs will be stuck with an estate and not know what to do. One in five people will be tasked with handling a probate of a loved one.

If you need to probate a will in Georgia, it’s important to understand the probate process. Probate is the legal process of administering the estate of a deceased person. The probate process in Georgia involves several steps, including filing a petition with the probate court, notifying heirs and creditors, and distributing assets to beneficiaries. (Real Estate Problem Solver can offer probate and other service referrals).

The Probate Process Starts with a Death Certificate

Whether the decedent in question died at home or in the hospital, a medical certifier will have to declare the person deceased by creating a certified death certificate. This can be the attending physician or county coroner, depending on your situation. The death certificate will include information like;

Cause of death
Decedent’s Name, Address, race
Location of death
Funeral home and method of disposition

Once the medical certifier has completed the original, it would be a good idea for the executor (or administrator) to get multiple copies. Your local health department will know who can make copies of the death certificate.

Make sure to get at least 20 copies. Most financial accounts, tax office, insurance, etc. will require a certified copy of the death certificate of the deceased before closing. Most counties can make certified copies at the health department or probate office (Hint: In Georgia, we have been told if your county health department takes a long time to get certified copies, you can go to another, less busy county, to get your certified copies).

Most funeral homes can direct the family where to go to get certified copies fast. They can also help with filing insurance claims pertaining to the decedent. Many funeral homes can also refer you to a local probate attorney to help close out the estate.

Now the Georgia Probate Process begins

The Probate process in Georgia must be started by filing with the court. If there is a properly executed will, the process is to file in the county the deceased lived. Although, if there is not a will, the Georgia process says to file with the county the death occurred, if he or she was a Georgia residence.

Next is to get a EIN (Tax ID number) from irs.gov for the estate. This creates a new entity by which the estate can operate. This also allows the executor or administrator to open bank accounts to conduct probate estate business. A probate attorney should help you with this.

If there is a will to probate

IF… there is a complete and properly documented will, the will assigns an executor to execute the terms of the will and distribute all the assets of the estate. The named executor will have many legal and financial responsibilities. They have the option to not accept this duty. If this is the case, another family member, friend or attorney will need to accept this duty in order to complete the probate process.

Once the named (or appointed) executor accepts this duty, the work begins. Some of the duties of the executor are:

Finding and contacting all creditors. This includes announcing the death of the decedent for a required amount of time in the local newspaper. This allows all creditors a chance to file a claim against the estate.
Filing a final tax return. If the probate process takes more than a year, a return will need to be filed each year the probate case is open.
Finding all assets and accounts of the deceased. Once all the assets of the deceased are listed and debts of the estate are paid (or settled), the heirs inherit the assets accordingly.

**It is important to get the help of an attorney here. Do not start paying debts of the estate until all claims are submitted. Some debts have a higher priority while other debts only have to be paid if there are funds available. If the estate runs out of money before the required debts are paid, the executor could be left liable.

Filing Probate in Georgia Intestate

If there is no will, the family has to appoint an agreed administrator to handle the estate. The Probate judge can appoint someone to be administrator if the family cannot agree. Once appointed, and the appointee agrees, the duties of the administrator begin, just as the executor would.

Have a list of all beneficiaries (per the will) and legal heirs listed (Ex.- Spouse, Children, adopted children, siblings, etc.) if there is no will. An attorney can direct you on who does and does not qualify. If there is no will or the legal heirs cannot agree, this can help the administrator and probate judge disperse assets per the state statute (Note: the probate process may not go in everyone’s best interest if the judge has to refer to the state statute. It would be wise for the heirs to get along at this point).

Selling your Georgia house in Probate

Assets, like inheriting the house, can be distributed to heirs or beneficiaries by the direction of the will after all APPLICABLE debts have been paid (Some debts can be inherited with the asset it is secured with, I.E., house). If the will dictates, the probated house must be distributed to the assigned heir, of course, per the Garn-St. Germain Act, any liens tied to the property will be inherited as well. Once assigned and distributed from the probated estate, the recipient can keep or sell the inherited house at their leisure.

If there is no will, the fate of the house (and other assets) will need to be determined by the heirs. If no heirs want the house, or if there are remaining debts to be paid, the judge may order the house sold (at or near fair market value) and the proceeds divided or used to pay estate debts. Otherwise, the agreed heir inheriting the house, again, will be responsible for paying any liens that come with the house.

The probate process does not always require an appraisal, but get one anyway. The appraised value at the time of death can later be used for a “step-up in basis”. This will save on capital gains tax if the house is ever sold later by the estate or the heir that inherited the house. For example, mom bought her house for $30,000 in 1981 and dies in 2018. After her death, the house appraises for $100,000. The “step-up in basis” allows the estate (or heir) to sell the house for $100,000 without paying capital gains tax on $70,000. The heir will, however, pay taxes on any proceeds above $100k or have a “loss write-off” if sold under $100k.

**This regulation is still in affect at the time of this writing (2021). Consult an attorney to ensure this valuable estate planning provision has not been abolished. It is currently being threatened for removal.

If the ownership on the warranty deed of the probated house says, “Tenant’s in common with right of survivorship”, then the surviving owner (usually a spouse) gets full ownership of the house without probating. Again, any debt tied to the inherited house will also transfer and need to be paid.

As mentioned above, in a Georgia probate process, some debts supersede the will. Secured debt, like car and house loans, must be paid off or reinstated by the beneficiary inheriting the secured asset. This is where an attorney can help determine which debts can be “inherited” and which need to be paid off.

The probate process of paying off debts

If the probate process reveals more debts than the estate can pay, estate property will need to be sold instead of inheriting.

Once the notice of death is announced per state statute, creditors will be allowed a time period to file a claim on the estate. Once the time period is over and creditors have filed a claim to the estate, then debts can be paid by “hierarchy”. For example; Secured debts and taxes may have priority over HOA dues and checking account overdraft fees.

Some debts are only required to be paid IF there are funds available. If the executor (or administrator) writes checks to the wrong creditors and runs out of money before the “required” bills are paid, they could be held liable. An attorney’s help is very valuable in this part.

If the probated assets need to be sold to pay the applicable debts, the executor (or administrator if there is no will) will have fiscal duty to get an appraisal and sell each asset for a reasonable fair market value. Those proceeds will be used to pay off any outstanding un-secured debts of the estate. In some cases, the beneficiaries take priority over un-secured creditors. These debts legally do not have to be paid off if there are no funds in the estate. Before you start selling assets, make sure to consult an attorney to guide you thru this.

An alternate trick for a spouse, instead of filing probate, is to file for “a year’s support”. This is a good alternative if there is a lot of debt in the estate or if the spouse is the only one inheriting from the estate. This can put the Spouse ahead of the unsecured creditors in the probate process. In some cases, it could void the need to probate the estate at all.

**Please refer to a professional probate attorney for guidance.

Last points of the probate process

If the deceased family member did their homework and was able to put their affairs in order (meaning there is a complete will and all assets are in a trust or other entity), the probate process may not be needed. This makes life very easy for the executor, but may not be the best option.

Some professional estate planners will argue to have something (ex.- Checking account, car, credit card account, etc.) go thru the full probate process as proof the probate process was completed. This protects the executor from creditors trying to file a claim against the estate after the fact.

Once the probate process is completed and all assets have been dispersed, the executor/administrator will need to file a final tax return for the estate. This closes the door on the estate.

If you are the executor or administrator responsible for conducting the probate process for a lost loved one, make sure to keep all receipts and invoices. You are entitled to get paid for the services you provided to estate. A qualified attorney can guide you on standard fee rates and percentages.

We hope this helps the probate process your working on go smoother. If you have any other questions, we have resources to help make your job easier.

For more help on this and other real estate issues and ideas, visit our Real Estate blog site

Good Luck,

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