7. Probate and Administration of Estates

Question 1

What is Probate?

Answer 1

Probate is the process by which a will is validated and the testator’s estate is distributed.

Question 2

Two types of probate proceedings

Answer 2

1. Solemn Form Probate
2. Common Form Probate

Question 3

Solemn Form Probate

Answer 3

-Formal probate process where notice is given to all heirs and interested parties.

-Once the will is probated, it is binding on all parties after a set period.

Typically used when:
-There is no dispute expected over the will.
-The executor wants to quickly establish authority.

Question 4

Common Form Probate

Answer 4

-Less formal and does not require notice to heirs.

-The will can be challenged for up to four years (ten years if the heir is a minor).

Commonly used when:
-A quick probate is needed.
-The executor wants to avoid notifying heirs immediately.

Question 5

Requirements to Probate a Will

To Probate a will, the following must be presented to the probate court:

Answer 5

1. The will
   -original copy, if available.
   -if the original will is lost or destroyed, the proponent must prove its terms and validity
2. Petition for Probate(filed by the executor named in the will or an interested party)
3. Proof of Execution with the required formalities(signed by the testator and witnessed by at least two competent witnesses)
4. Testator’s capacity.

Question 6

Time Limits for Probate and Administration

Filing a Will for Probate

Answer 6

A will must be filed for probate within five years after the decedent’s death.

Question 7

Time Limits for Probate and Administration

Contesting a Will

Answer 7

Will contests must be initiated:

-Within the notice period in solemn form probate.

-Within four years for common form probate.

Question 8

What can be accepted for probate if a will is lost or destroyed?

Answer 8

An authenticated copy may be accepted for probate.

Question 9

Does Georgia recognize duplicate originals of a will?

Answer 9

No, Georgia does not recognize duplicate originals.

Question 10

Who is generally appointed as a personal representative?

Answer 10

The person named in the will as executor.

Question 11

What is an administrator with the will annexed?

Answer 11

A personal representative appointed by the court when the appointed executor refuses to serve and the substitute is deceased or otherwise unavailable.

Question 12

The administrator with the will annexed may be unanimously selected by:

Answer 12

the beneficiaires who are capable of expressing a choice.

Question 13

In intestacy, the court will appoint an administrator of the estate from:

Answer 13

1. Surviving spouse (unless divorce action was pending);
2. heirs;
3. any other eligible person;
4. any creditor of the estate; or
5. the county administrator.

Question 14

When an individual has died intestate and there has been no personal representative appointed in Georgia, any heir of the decedent may:

Answer 14

file a petition seeking an order that no administration is necessary.

Question 15

What must a petition show when seeking an order that no administration is necessary?

Answer 15

The estate owes no debts or all creditors have consented.

Question 16

What are the qualifications for a personal representative?

Answer 16

1. Taking an oath,
2. issuance of appropriate letters by the probate court, and
3. posting any required bond.

Question 17

Does a personal representative need to reside in Georgia?

Answer 17

No, as long as they qualify otherwise.

Question 18

What are the four duties for the executor (or personal representative)?

Answer 18

1. Marshal Estate Assets;
2. Pay Debts and Taxes;
3. Distribute Assets;
4. Fiduciary Duties.

Question 19

Marshal Estate Assets

Answer 19

-Collect and inventory all the decedent’s assets, including real estate, bank accounts, and personal property.

-File an inventory with the court if required (can be waived by the will or beneficiaries).

Question 20

Pay Debts and Taxes

Answer 20

Pay valid creditor claims and taxes owed by the estate.

Priority of payments (O.C.G.A. § 53-7-91):
1. Funeral expenses.
2. Expenses of administration.
3. Debts and taxes under federal law.
4. Other debts in order of priority.

Question 21

Distribute Assets

Answer 21

-Distribute the remaining assets to beneficiaries as directed by the will.

-Follow specific bequests, then residuary provisions.

Question 22

Fiduciary Duties

Answer 22

-Duty of care, loyalty, and impartiality toward beneficiaries.

-Avoid conflicts of interest or self-dealing

Question 23

What can a personal representative file to determine heirship?

Answer 23

A petition to determine heirship.

Question 24

What must the petition for determining heirship include?

Answer 24

Names, addresses, ages, relationships, and interests of known parties.

Question 25

What can a personal representative petition for after completing estate distribution?

Answer 25

Discharge from office and liability.

Question 26

What is a will contest?

Answer 26

A will contest challenges the validity of the will.

Question 27

What are the six Grounds for a Will Contest?

Answer 27

1. Lack of testamentary capacity 2. Undue influence 3. Fraud 4. Mistake 5. Improper Execution 6. Forgery(testator's signature was forged, or the will is fraudulent)

Question 28

What voids a will regarding undue influence?

Answer 28

The testator was coerced or pressured into executing the will by someone in a position of trust or authority. Undue influence requires more than mere persuasion.

Question 29

Does requesting, suggesting, advising, or otherwise soliciting a testamentary disposition or a change in a prior will made by the testator constitute duress or undue influence?

Answer 29

No.

Question 30

When does a presumption of undue influence arise?

Answer 30

When a confidential relationship existed between the testator and the party involved in drafting the will.

Question 31

what happens if undue influence is proven?

Answer 31

It will void the provisions of the will that benefit the person exerting the undue influence.

Question 32

What is Fraud in the inducement?

Answer 32

When a beneficiary knowingly makes a false representation to induce the testator to draw a will in their favor.

Question 33

What is Fraud in the execution?

Answer 33

Fraud as to the very nature of an instrument or its contents.

Question 34

What is mistake in the inducement?

Answer 34

A mistake as to facts outside the will which induce the testator to dispose of property in a certain manner.

Question 35

What is mistake in the factum?

Answer 35

A mistake in the will itself.

Question 36

What is the preferable remedy for fraud or undue influence?

Answer 36

Constructive trust.

Question 37

What is the No Contest Clause (In Terrorem)?

Answer 37

Georgia recognizes “no contest” (or “in terrorem”) clauses. Under these clauses, someone that contests a will forfeits their claim if they lose the contest.

Question 38

What does Georgia require for the in-terrorem clause to state?

Answer 38

Georgia requires that the in terrorem clause state the disposition of the forfeited property as a condition of the clause. If no disposition is directed, then the in terrorem clause is void.

Question 39

An in terrorem clause leads to forfeiture only where the caveator (challenger):

Answer 39

loses and the will is upheld.

Question 40

What happens if the caveator is successful and the will is declared invalid?

Answer 40

If the caveator is successful and the will is declared invalid, the entire will, including the in terrorem clause, is denied probate, and the estate is distributed under the laws of intestacy or under a prior will.

Question 41

What are non-probate transfers?

Answer 41

non-probate assets are those that bypass the probate process and transfer directly to designated beneficiaries upon an individual's death.

Question 42

Common examples of non-probate assets:

Answer 42

1. Joint tenancy with right of survivorship. 2. POD and TOD accounts. 3. Life insurance proceeds. 4. Retirement accounts. 5. Assets in a revocable living trust. 6. Beneficiary designations on financial accounts.