After a death, one question usually comes before all the others: does this have to go through court?
Georgia law draws a line most people never hear about. Anyone holding a will has to file it with the probate court in the county where the person lived, whether or not a case gets opened. When nothing in the estate needs court authority, the will can be filed “not for probate.” So do all wills have to be probated in the sense people mean? Every will gets filed. Only some get probated. Work through the eight questions below to see which side you are on.
1. Did they own real estate titled in their name alone?
This is the single most common reason an estate opens in Georgia. Title technically passes to the heirs or beneficiaries at death, but no title company or closing attorney will let that property be sold or refinanced without court-issued letters showing who has authority to sign. A house in one name almost always means probate.
2. Is there a bank or investment account with no beneficiary and no joint owner?
Accounts with a payable-on-death designation or a surviving joint owner transfer on their own. An account with neither generally freezes until the court appoints someone. This is where an otherwise simple estate gets stuck, often over an old checking account nobody thought about.
3. Is there a will?
A will does not keep an estate out of court. It tells the court who should serve as executor and who receives what. It also closes off one shortcut: Georgia’s “no administration necessary” petition, which lets heirs divide an estate without a personal representative, is available only when someone died without a will, every heir signs off on the division, and the debts are resolved.
4. Was a trust created, and was it funded?
A revocable trust can keep property out of probate, but only if the property was retitled into it. Trusts signed years ago and never funded are common, and an empty trust changes nothing. Deeds, account titles, and beneficiary forms are what carry out the plan, a gap we cover in what many Georgia estate plans are missing.
5. Is there a surviving spouse or a minor child?
Georgia allows a surviving spouse or minor child to petition for year’s support, which sets aside property for their support and can include the home. It works whether or not there was a will, has to be filed within two years of the death, and comes ahead of most unsecured creditors. Our post on surviving spouse rights in Georgia explains how it fits with the rest.
6. Are there unpaid debts or creditor claims?
Medical bills, credit cards, and tax balances have to be handled in a specific order, and paying the wrong person first can land on the executor personally. Debt rarely creates probate by itself, but it removes most of the informal options and raises what the process costs. We walk through the numbers in what probate costs in Georgia.
7. Do the heirs agree on everything?
Every shortcut Georgia offers depends on consent. One relative who will not sign, or who questions the will, moves the estate into full administration and sometimes into litigation. Small disagreements about a house or personal items are worth addressing early, while they are still small.
8. Has anyone asked you for “letters”?
If a bank, insurer, or title company has requested letters testamentary or letters of administration, they have already told you the answer. Those documents come only from the probate court, and no institution will release the asset without them.
Adding Up Your Answers
Yes to any of the first three questions points toward probate. Questions four through eight rarely decide it on their own, but they shape how long the case runs and how much friction comes with it. All no answers is a genuine possibility when everything passed by beneficiary designation, joint ownership, or a funded trust.
Key Takeaways
- Every Georgia will must be filed with the probate court, though only some estates require probate.
- Property titled in the deceased person’s name alone is the most common trigger for opening a case.
- A will directs who serves and who inherits; it does not avoid court.
- An unfunded trust provides no protection from probate.
- Year’s support may let a surviving spouse or minor child receive property ahead of most creditors.
- Georgia’s informal alternatives all require agreement among the heirs and resolved debts.
Find Out Where Your Estate Stands
Attorney Stephanie Steele has spent more than twenty years handling estate planning and probate and estate administration for people in Marietta, Roswell, Canton, and across North Metro Atlanta. Sorting an estate into the right category is usually a short conversation, and knowing the answer early can save months. Depending on your circumstances, an attorney can review how the property is titled and tell you what the court will require.
References: Justia, Georgia Code § 53-5-5, Duty to File Will and Georgia Probate Court Standard Form 9, Petition for Order Declaring No Administration Necessary