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What Happens If You Don’t File The Will For Probate?

What if you don't file the will?

Summary: Georgia requires wills to be filed with the probate court. This is especially important if you are planning to distribute property or assets through the probate process.

A will is a common estate planning tool that enables people to list their preferences about distributing their assets after death. It provides the probate court with guidance on overseeing the estate and how to handle any disputes over the will itself. When a person creates a will, he or she typically names a person to serve as their executor or personal representative. They are responsible for filing the will to start the probate process, handling any debts, and settling the estate. But what happens if the will is not filed for probate?

Filing a Will vs. Opening Probate

To begin, it is important to note that there is a difference between filing a will and filing a will for the purpose of opening probate. Filing a will is just that – filing the will with the probate court. Even if probate seems unnecessary, the will must still be filed.

There are many items which must go through the probate process: real estate, bank accounts with no beneficiary designation, stocks and bonds, and tangible assets (ex: jewelry, art, furniture, vehicles). However, if the testator* did not leave anything of value, or they placed their assets into a trust, some choose to skip the probate process altogether. Probate is not always necessary or even required. But if the testator owned the property personally at the time of death without co-owners or beneficiary designations, the only way to legally transfer the assets is through probate.

Georgia’s Filing Laws

Under Georgia law, the person in possession of the will “shall file it with reasonable promptness with the probate court.” (Georgia Code § 53-5-5). In other words, you are required to file the will as soon as possible after the testator’s death. A will should be offered for probate within five years of a person being appointed the estate’s personal representative, or a court order is filed stating that the estate does not require a personal representative or administrator. (Georgia Code § 53-5-3).

Penalties for Failing to File a Will

If the executor or person in possession of the will does not file it with the local probate court, “the probate court may attach for contempt and may fine and imprison a person withholding a will until the will is delivered.” (Georgia Code § 53-5-5). The person responsible for filing the will could face civil and criminal charges. If the probate documents are not filed, the heirs may sue for the items or assets they are set to collect. If someone knowingly fails to file a will for their own financial gain, he or she could face criminal charges for intent to conceal the will.

With careful estate planning, it is possible to avoid the probate process. But Georgia still requires the will to be filed with the probate court. This is especially important if you are planning to distribute property or assets. If you have additional questions about probate, please contact Siedentopf Law at (404) 736-6066 or via our online form.

© Sarah Siedentopf and Siedentopf Law, 2019. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and EstateLawAtlanta.com with appropriate and specific direction to the original content.

*Testator: the person who created the will

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