A will is a common estate planning tool that enables people to list their wishes about how their assets should be distributed after death. The will 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. The executor is responsible for filing the will, starting the probate process, handling any debts, and settling the estate. But what happens if you don’t file the will for probate?
Georgia Requires Wills to be Filed with the Probate Court
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.
Filing a Will in Georgia 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, Georgia law requires that the will must still be filed.
Filing a will for probate is the process of opening an estate with the court so that all assets and tangible property may be distributed according to the deceased person’s wishes.
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, probate may be avoided if the person who created the will, the testator, did not leave anything of value or they placed their assets into a trust.
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).
Why Should I File a Will
You may be wondering why you should file your loved one’s will? Perhaps everyone in the family is agreeable and there are no conflicts at hand. Filing the will seems like an unnecessary extra step, so you’re wondering if you even need to file the will? And that is a fair question to ask.
But Georgia law is clear: you just have to file the will.
We’ve discussed above why you may not go through the probate process with an estate, but it’s important to note that a will can only be effective if is filed. This means, that unless the will is filed with the Court you cannot legally distribute any items or assets from the decedent’s estate to anyone—even when everyone agrees. The will has to be filed for it to have an effect.
The best rule of thumb is to file the will with the probate court as soon as possible– even if you are unsure whether or not the estate will need to go through the process of probate. You can always open the estate for probate later, should you determine it is necessary.
Penalties for Failing to File the Will in Probate
If the executor or person in possession of the will does not file it with the local probate court, that person can get in a lot of trouble. Georgia law states: “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). This means that the person responsible for filing the will could face civil and criminal charges for failing to file a will. Additionally, 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.
We Are Here to Help With careful estate planning, it is possible to avoid the probate process. But Georgia still requires the will be filed with the probate court. This is especially important if you are planning to distribute property or assets.
We know that probate is a complicated and sometimes daunting process—even when your loved one has provided everything needed to make the process smooth. That is why we always recommend hiring a knowledgeable attorney to assist with the estate planning process before death, and the probate process after.
If you have additional questions about probate or the estate planning process, please contact Siedentopf Law at (404) 736-6066 or via our online form.