Georgia Petition for Probate

Introduction

Key Things to Know

1. 1

   Filing: a petition to probate a will in common form or in solemn form (GPCSF 4 or 5), a petition to probate in solemn form and for letters of administration with will annexed (GPCSF 7), or a petition for letters of administration when there is no will (GPCSF 3), filed in the probate court of the county of the decedent's domicile or, if the decedent was not domiciled in Georgia, a county where the estate or some portion of it is located (O.C.G.A. § 53-6-21(a)). The statewide GPCSF forms are published as recommended forms, so check with the probate court clerk and follow the court's form.

2. 2

   No one has authority over estate assets until the court appoints a personal representative and letters issue. Being named as executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the creditor period runs.

3. 3

   Georgia's deadline to offer a will for probate and the will custodian's duty to deliver the will are not covered on this page, so ask the probate court clerk or an attorney whether any time limit applies to your situation.

4. 4

   Intestate estates: the heirs may unanimously select the administrator unless the sole heir is the surviving spouse and a divorce or separate-maintenance action was pending (O.C.G.A. § 53-6-20). Otherwise the court appoints in order: the surviving spouse (unless such an action was pending), other heirs or the person chosen by a majority in interest, any other eligible person, any creditor, then the county administrator. Executor priority and nonresident rules are not covered here, so ask the court clerk.

5. 5

   Notice: the petition lists the decedent's full name, domicile and date of death, and the heirs' names, ages or majority status, addresses and relationship (O.C.G.A. § 53-6-21(b)). Heir notice rules for common form and solemn form probate are not covered here, so ask the court clerk. Creditors: within 60 days of qualification, the personal representative must publish a notice to creditors once a week for four weeks in the county's official newspaper, and creditors who do not notify the representative within three months from publication of the last notice lose equal participation with creditors of equal priority (§ 53-7-41(b), (d)).

6. 6

   Bond: an administrator of an intestate estate or a temporary administrator must give bond with good and sufficient security (O.C.G.A. § 53-6-50(a)). A person petitioning to qualify as personal representative of an intestate estate may be relieved of bond by the unanimous consent of the heirs (§ 53-6-50(b)). A guardian may consent for a non-sui-juris heir, but not if the guardian is the petitioner. A national bank, or a Georgia bank or trust company with capital, surplus and undivided profits of at least $400,000, is exempt (§ 53-6-50(c)). The executor bond rule is not covered here.

7. 7

   Not every estate needs probate. Assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate. Georgia also allows an heir to petition for an order that no administration is necessary when the decedent died intestate with no personal representative appointed in Georgia, the estate owes no debts or creditors have consented or will be served, and the heirs have agreed on a division (O.C.G.A. § 53-2-40, GPCSF 9). For other small-estate options, see DocDraft's small-estate-affidavit page.

Georgia Requirements for Petition for Probate

• County Probate Court of Domicile

  A petition goes to the probate court of the county of the decedent's domicile, or, for a non-Georgia domiciliary, a county where the estate or part of it is located (O.C.G.A. § 53-6-21(a)).

• Petition Type Depends on Will or No Will

  Georgia uses a petition for letters of administration when there is no will, and a petition to probate the will in common form or in solemn form when there is one. Recommended forms are GPCSF 3, 4, 5, 7 and 8; the court's form controls.

• Petition Contents

  The petition lists the decedent's full name, domicile and date of death, and the heirs' names, ages or majority status, addresses and relationship (O.C.G.A. § 53-6-21(b)).

• Order of Preference for Intestate Administrator

  The heirs may unanimously select the administrator, unless the sole heir is the surviving spouse and a divorce or separate-maintenance action was pending. Otherwise the court appoints the surviving spouse (unless such an action was pending), other heirs or the person chosen by a majority in interest, any other eligible person, any creditor, then the county administrator (O.C.G.A. § 53-6-20).

• Bond for Intestate Administrator

  An administrator of an intestate estate or a temporary administrator must give bond with good and sufficient security. A person qualifying as personal representative of an intestate estate may be relieved of bond by the heirs' unanimous consent (O.C.G.A. § 53-6-50(a), (b)).

• Bank and Trust Company Bond Exemption

  A national bank, or a Georgia bank or trust company with capital, surplus and undivided profits of at least $400,000, is exempt from the bond requirement (O.C.G.A. § 53-6-50(c)).

• Creditor Notice by Publication

  Within 60 days of qualification, the personal representative must publish a notice to creditors once a week for four weeks in the county's official newspaper (O.C.G.A. § 53-7-41(b)).

• Three Months to Notify the Representative

  Creditors who do not notify the personal representative within three months from the date of publication of the last notice lose equal participation with creditors of equal priority (O.C.G.A. § 53-7-41(d)).

• Order That No Administration Is Necessary

  When a person dies intestate with no personal representative appointed in Georgia, any heir may petition for an order that no administration is necessary, using GPCSF 9 (O.C.G.A. § 53-2-40).