Will Contests & Administration of Estates

Question 1

Define

Will Contest

Answer 1

A challenge to whether the document offered for probate is a valid will.

Question 2

Proper venue and standing for a will contest

Answer 2

• Typically brought in Superior Court, although in larger counties where the probate judge is an experienced lawyer, may be brought in Probate Court.
• Any person whose share of the estate would increase were the will contest to succeed has standing to contest the will.

Question 3

Define

No-Contest Clause

Answer 3

Provides that a beneficiary forfeits their interest in the estate if they contest the will. Valid and enforceable in Georgia.

A no-contest clause is not enforceable against a person who:

• Brings an action for interpretation or enforcement of a will;
• Brings an action for an accounting, for removal, or for other relief against the personal representative; or
• Enters into a settlement agreement.

Question 4

Proper venue for probate administration?

Answer 4

Venue lies in the county of the decedent’s domicile at death. The probate court has exclusive jurisdiction over the probate of wills.

Question 5

Statute of Limitations for Probate

Answer 5

A will must be probated within 5 years from the earlier of:

(1) The latest date on which a petition is filed for the appointment of a personal representative; or
(2) The date of entry of a final order granting any petition that remains in effect.

Question 6

How does administration begin?

Answer 6

When any interested person files a petition for administration. The custodian of the will must deposit the original will with the clerk of court having venue for the decedent’s estate within 10 days after receiving information that the testator died.

Question 7

What are the different forms of probate?

Answer 7

• (1) Solemn Form -
  
  • Requires notice to all heirs and the proponents and beneficiaries under any purported will. The will is proved by all living witnesses within the county’s jurisdiction. Probate is conclusive immediately to all persons receiving notice.
• (2) Common Form -
  
  • Will is proved by the testimony of a single subscribing witness and without service or notice to anyone. It becomes conclusive after 4 years on all parties except heirs who are minors.

Question 8

Define

Order of No Administration Necessary

Answer 8

Any heir may file a petition for an order dispensing with administration that must show:

• The consent of all heirs
• That the estate owes no debts or that all creditors have consented
• The proposed distribution of the estate, signed by all heirs and notarized

Question 9

Define

Personal Representative

Answer 9

A personal representative will be appointed to manage the estate. Appointed either in the will or by the court. The heirs may choose the personal representative by unanimous consent. Absent such consent, the judge may choose the person who best serves the interests of the estate by the following preferences:

• Surviving Spouse
• The closest heir
• Any other eligible person
• A creditor of the estate
• The county administrator

Question 10

How are Creditor’s Claims Handled?

Answer 10

Claims not presented to the representative within 3 months from the date of publication of the last notice lose the right to equal participation. Assets are paid to creditors of insolvent estates according to the following priority:

• Year’s support for the family
• Reasonable funeral expenses
• Necessary expenses of administration
• Reasonable expenses of the decedent’s last illness
• Taxes and other debts due to the state or United States
• Judgments, secured interests, and other liens
• All other claims

Question 11

What are examples of will substitues?

Answer 11

• Property passing by contract - i.e., life insurance proceeds
• Property passing by right of survivorship
• Property held in trust
• Bank accounts / Joint accounts
• POD accounts
• Deeds