Summary: When a family member passes away, you may have to decide whether to probate his or her will. Siedentopf Law explains how to begin the probate process.
Last week I addressed some things that will need doing when someone passes away. One of the main things was finding the will. This may be in a fireproof box at home, a safety deposit box at the bank, a file cabinet somewhere, who knows. Let’s assume you have found the will. What do you do with it?
A first step will be to take a look at the will and see what it says. Particularly, you will want to see who is nominated as executor/personal representative of the estate. If that person is you, skip to the next step. If that person is not you, contact that person and see if he or she is willing to take on the job. If the answer is yes, pass on the will to that person. If the answer is no, keep reading.
The biggest decision that you will be making is whether to probate the will. If there are no assets, or very few assets, passing under the will, and there are more debts than assets, you may choose not to probate the will. You would be doing a lot of work just to smooth the way for the credit card companies, etc, to get their money. Major caveat—if you are the spouse or the deceased has minor children, in Georgia we have a thing called “Year’s Support.” This trumps almost every kind of debt and is a whole different conversation.
When considering probating a will, you will also consider whether you are willing to be the one to do it. Being named an executor in a will does not force you to accept the responsibility. It is, however, a great compliment as people generally only name those they consider competent and trustworthy to this position. Depending on the amount of stress, especially in light of family issues, you may decide that you would rather not be the executor. Or, you may decide that you are willing to take on the duty and move forward.
If you decided that you were willing to probate the will, you will file a petition with the probate court in your county and attach the original will. If, however, you decided that you were unwilling to probate the will, for whatever reason, you do still have one responsibility left. There is no requirement that you probate a will, but there is a legal requirement that you file the will with the probate court. This way the will is in a safe place where it can be located by anyone who needs it.
This is the completely predictable part where I recommend working through all of these questions and issues with the help of an experienced probate attorney. No matter how much or how little of the work you want the attorney to handle, it will be worth your time and money to make sure the right thing is being done in the right way. You can contact Siedentopf Law at (404) 736-6066 or via the contact form on our website.
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