Probate for Small GA EstatesShow Table of Contents
Full probate is not required for Georgia estates if there is no will, or if the only assets are held by financial institutions with less than $10K on deposit (each).
You can use a simplified probate procedure in GA if:
- There is no will
- No executor has been appointed
- All heirs agree on a distribution plan for the estate (heirs are determined by family relationship; see GA Code § 53-2-1)
- Any known creditors agree to the plan
In Georgia, each county has a local probate court. If you are using EstateExec and you enter the decedent's county of legal residence on the Decedent tab, you will see a direct link to the appropriate court here, usually with more detailed information about the court than the limited search link in the preceding sentence.
To use a simplified procedure, an heir must submit a Petition for Order Declaring No Administration is Necessary (Form GPCSF-9) to the appropriate court. The petition must contain:
- Name and address of the decedent
- Name, address, and ages of the heirs
- A copy of the death certificate
- A statement that there are no creditors, or that any known creditors have consented to this plan or will be sent notice of this petition (see GA Code § 53-11-3 for instructions)
- A detailed list of estate assets
- A notarized distribution plan signed by all the heirs
If the estate contains any property subject to a lien (such as a mortgage), then the consent of the lien-holder must be included as well, or the lien-holder must be notified of the petition as per above.
Once the court approves a petition, it will issue orders to effect the submitted distribution plan.
See GA Code § 53-2-40 for statute details.
Payment of Deposit
If a financial institution (such as a bank) holds up to $15K for a decedent, the immediate family members (or the funeral home) can apply to have those funds directly distributed to themselves.
If these are the only assets of the estate, the estate may not require any probate-related proceedings at all. When determining estate contents, do not include assets that would not normally go through probate, such as community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Distribution of the funds held by the financial institution is mandated as follows:
- To any surviving spouse
- If no surviving spouse, to the children pro rata
- If no surviving spouse or children, then to the father and mother pro rata
- If none of the above exist, then to the siblings of the decedent pro rata
If none of those people make a claim within 90 days of the decedent's death, then any unpaid creditors for funeral expenses or expenses related to the last illness can apply for the funds instead.
See GA Code § 7-1-239.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any GA Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Estate debts have priority over most distributions in turn, so you should arrange to have all debts resolved before distributing assets. Unpaid estate creditors have the right to sue heirs for the value of any distributions received using the approaches described on this page.
In fact, if any creditor objects to a Petition for Order Declaring No Administration is Necessary, the judge will not allow the simplified probate procedure to move forward. Consequently, any submitted distribution plan should include details on how all debts will be resolved. After submitting a Petition for Order Declaring No Administration is Necessary, any known creditor who has not already agreed to the petition should be notified of the petition (see GA Code § 53-11-3).
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
No Small Estate Affidavit
Many people ask about using a small estate affidavit, but Georgia does not support such an affidavit. You must use one of the above methods (or full probate) for handling small estates in Georgia.
See also General Probate.