Will Probate (Common and Solemn Form)
There are Common Form and Solemn Form Will Probates. A Will needs to be probated in order for it to be deemed a valid Will. The word “probate” means “to prove”. A nominated Executor is not authorized by law to act in accordance with the Will until the Will is proven to the Court to be the Last Will and Testament of the deceased individual; the Court appoints the Executor, and the Executor takes his oath. The court process allows for a Caveat (an objection) to the Solemn Form Probate of a Will and a hearing will be scheduled. The Will determines who receives property and what property they receive.
When an individual dies and has a Will, the Will is usually offered for probate by the individual who is named in the Will as the executor. You may choose to probate the Will in solemn form or in common form. The petition to probate in common form will not be binding for four years after it has been completed. Executors appointed through a solemn form probate can petition to be discharged from their liability and responsibilities six (6) months after their appointment. Even if the Will is not going to be probated, anyone who is in possession of the Will of an individual who has died, must bring the Will to the Probate Court for filing. The Will is probated in the Probate Court in the county where the deceased established residency.
To begin the proceedings, you must file a Petition in Probate Court. Initial Filing Fees must be paid upon filing the petition. In order for the Probate Court to process your petition, you will need to have all of the blanks filled in. The petitions have places for signatures that must be notarized by either a clerk of the court or a notary public. All heirs must be listed on the petition. The heirs are the closest living relatives of the decedent, (the decedent’s spouse, if living, and the living children of the decedent). Include adopted children and children born out of wedlock. Do not include stepchildren. If a child has died before the decedent, list any living children, grandchildren, or other descendants of that deceased child. If the decedent had neither a living spouse nor children, the decedent’s mother and father are the heirs. If the decedent’s mother and father are not living, the decedent’s brothers and sisters, along with the children or other descendants of any deceased brothers or sisters are the heirs. If you need help determining who are the heirs, you may use the Heir Determination Worksheet.
Once the heirs have been determined, you will need to state their ages (or over 18), addresses, and relationship to the decedent. There is a difference between heirs and beneficiaries. The heirs are the closest living relatives of the decedent. The beneficiaries are those people who inherit property by the terms of the Will. If a person is a beneficiary but not an heir, that person does not have to be listed. There is an acknowledgement page for each heir to sign, but must sign in front of a clerk of the court or a notary public (this acknowledgement is not required in common form).
If an heir does not sign an acknowledgement, the court will serve a copy of the petition and Will upon them (additional fees apply). Add $50.00 per Sheriff’s Service. (this applies when the heir is located in the State of Georgia). Add $120.00 for Publication. (this applies when the location of the heir or the heir is unknown). An envelope with enough postage to cover certified mailing of the Petition, Notice, and Will must be provided to the Court, if the heir is to be notified by certified mail return receipt requested. (This applies when the heir lives out of state)
If the Will does not contain a Self-Proving Affidavit, then the petitioner must file Interrogatories to Witness to Will at the time the petition is filed. The answers to the Interrogatories must be filled out by a witness to the Will. The top portion of the Interrogatories can be completed by the witness, the Petitioner, or the Petitioner’s attorney.
Once a petition and the original Will are filed with the Court and filing fees paid, the petition and Will are docketed and assigned a file number. A clerk will review your file for deficiencies, and either contacts you to correct your petition; or to schedule a hearing date. During the hearing, the Judge of the Probate Court will discuss your petition with you. Upon a favorable ruling, you are given the oath of office. At the conclusion of your hearing (if all fees have been paid), you will be issued Letters of Testamentary and have full power to carry out the directions of the Will. In some cases you may be required to post a Bond, file an Inventory, and file Annual Returns. This is determined by the testator at the time they executed the Will. The Court will run a Debtors and Creditors Notice in the local newspaper. You will be required to give to the clerk a check payable to the Bryan County News for $50.00. This Notice is prepared by the clerk and forwarded to the Bryan County News with the check..
An Executor/Executrix may be discharge from office and liability six months after the last debtors and creditors notice was published in the newspaper.
The filing fees for the petition to probate the Will must be paid at the time the petition is filed with the Probate Court. The Probate Court accepts cash, money orders, or personal checks made payable to “Bryan County Probate Court.” Any balance of court costs must be paid prior to the Order or Letters of Testamentary are issued.