The passing of a family member is tragic, leaving many of us are focused on taking care of funeral arrangements, informing family members and friends, and going through all the necessary documents and tasks to resolve any issues with creditors and the estate of the deceased.
Being the executor of an estate can sometimes be an overwhelming experience, especially when coupled with dealing with the emotions that come from the person’s passing.
Let’s start with a not so commonly known fact: Under Georgia probate law, a person in possession of an original Will has a duty to file the Will in the appropriate county probate court. It’s important to note that this does not mean that they are required to probate the Will. A Will can be filed with the probate court for informational purposes only. Everyone’s situation is different, and frequently due to the lack of knowledge this step is missed or skipped. This sometimes results in questions about the validity of non- filed copies of Wills, and this is especially true of older Wills. Without proper filing these can often go completely unknown.
So let’s say you are in possession a copy of a Will that you believe to be a valid, recent Last Will and Testament, but you are unable to locate the original. What do you do? You can file the copy to be probated. When filing a copy of a Will, you must give the court an affidavit from at least one of the witnesses that signed the Will. In Georgia, a Will must be witnessed by two individuals at minimum. Often, their address and telephone number appears on the Will under their signature. In the event that you are unable to locate the witnesses after a diligent search, you can still ask the court to accept the copy based on your good faith efforts to locate the witnesses.
The probate process can be either fairly easy or very difficult. First, let’s talk about the easy way. If all the heirs are in agreement with having the Will filed, you can obtain their consent which is documented by their notarized signatures. This allows for a much greater chance of the probate Judge accepting the copy of the Will. You will also avoid the cumbersome and costly task of providing notice to all of the heirs. On the other hand, there is the more difficult process which arises when all heirs are not in agreement. In this scenario, notice must be given to all the heirs that do not consent to the Will being filed for probate. Notice is sent and served by either the Sheriff, process server, or via certified restricted mail to all of the heirs. After receiving notice the heirs and other interested parties will have the opportunity to object. This is also frequently the point when someone may come forward with an original Will, alternate Will, or a Will that is more recent. They may also object to the validity of the Will made due to other various legal arguments, such as competency of the Testator or undue influence.
If someone else files another Will to be probated, the Court will have to determine which is the true Last Will and Testament of the deceased, thus determining which Will should be admitted to be probated. The surrounding circumstances and specific facts to each case will weigh heavily on the court’s decision of which Will should be admitted.
The attorneys with the Cansino Blanchette Law Firm are available for consults to answer further questions regarding probating an estate. We can further assist you on creating your own Estate Planning Documents, whether it ‘s a Will and Last Testament, Power of Attorney, Health Care Directive or Trust. Call us at (404) 997-8470
Author: Minerva C. Blanchette
Cansino Blanchette Law Firm, LLC