Probate / Administration / Year’s Support

While you are not required to have a lawyer, in many cases it is advisable to do so. The different proceedings – probate, administration, years support –can be complicated and confusing. A lawyer can see that any petitions are properly filed, can insure that notification is properly given to other parties, and that proceedings take place as they should.

Very often, there are other matters (for example, tax returns, preparation for deeds, title transfers, benefit claims, creditor notices, debtor demands and such) which make it prudent and necessary to seek the services of an attorney.

If you do choose to represent yourself, you can find helpful information concerning Probate Court proceedings at http://gaprobate.gov/. If you do not have a computer, or access to the internet, the Harris County Library has computers that are available for the public to use during normal business hours.

Standard Forms for most Probate Court proceedings can be obtained at http://gaprobate.gov/standard-forms/.

If you choose to represent yourself, you must prepare and file all paperwork for your case. The Judge and court staff cannot prepare your paperwork. It is up to you to make sure that your paperwork is completed and filed properly.

Here is how a typical probate proceeding takes place: once you complete the appropriate forms for your situation and make arrangements for proper notification (sometimes called “service” or “notice”) on other interested parties, you must file your papers and pay required filing fees. (The initial filing fee will usually be $160. At the conclusion of your case, you will be required to pay any balance due for accrued costs.) Once your paperwork has been filed, the clerk and/or judge will review your paperwork to insure that it is complete and proper, to make sure that everyone who was supposed to be notified of the proceedings (heirs, beneficiaries, creditors, etc) have been or will be notified, and to schedule a hearing.

At all times during the handling of your petition with the Court, you must make sure that the Probate Court has your current contact information (mailing address and daytime telephone number).

You must keep up with all court dates and other developments concerning your case. It is up to you to keep your case moving through the process.

The Judge and the Clerks do not send out reminders about court. Be on time for court.

We look forward to working with you.

When someone dies who had a Will, the Will needs to be probated. “Probate” means “to prove.” In a Probate proceeding, someone proves that a document is the Last Will and Testament of a deceased person.

There are various kinds of probate petitions which can be filed – Probate in Solemn Form, Probate in Common Form, and Probate in Solemn Form with the Will Annexed. You should consult with an attorney to determine which is appropriate and most advantageous to the estate.

For each of those three petitions, the procedures for filing are similar.

In order to file a Probate Petition in Harris County Probate Court, the person who died must have resided in Harris County. You will begin the process by filing a Petition with the Court. (Each of the Petitions are available as fill-in-the-blank forms at http://gaprobate.gov/ (Click on “Standard Forms”.)

The person who files the Petition is usually the person identified in the Will as the Executor.

When you prepare your petition for the Court, you will need to have all of the appropriate blanks filled in before you file it. The petitions have places for signatures that must be notarized by either a clerk of the court or a notary public. All heirs of the deceased (the closest living relatives of the person who had died; most often the surviving spouse and children) must be listed on the petition. They must all be properly notified of the probate petition or they can

sign an acknowledgment (called an “acknowledgement of service”) indicating that they are aware of the proceeding and waive further notification.

If you need help determining who the heirs are, you may use the Heir Determination Worksheet. To do so, click here.

Once a petition and the original Will are filed with the Court and filing fees have been paid, the petition and Will are docketed and assigned a file number.

A clerk will review your file for to make sure that it is in order, and either contact you to correct your petition or to schedule a hearing date. During the hearing, the Judge of the Probate Court will discuss your petition with you. If everything is in order and the Will is found to be valid, you are given the Executor’s oath of office. You are then issued a document called “Letters Testamentary” which grant you full power to carry out the directions of the Will.

Many matters handled by the Probate Court are uncontested, meaning that everybody is in agreement with each other concerning the Will. Such matters can be concluded quickly and usually with only a meeting before the Judge (in the courtroom or in his office). Other matters might be contested and require a full-blown trial (as, for example, when the validity of a will, or which party should represent the estate, is being disputed). If someone wants to contest the Will or dispute some aspect of the Probate, they can do so by filing an objection – called a Caveat — in writing with the Court.

Non-lawyers are expected on those occasions to be able to comply with rules of procedure and rules of evidence.

As stated above, when someone dies with a Will, one of three petitions is usually filed with the Probate Court: Probate in Solemn Form, Probate in Common Form, and Probate in Solemn Form with Will Annexed.

PROBATE IN SOLEMN FORM

Basics:

• In order to file a Petition for Probate in Solemn Form in our Court, Harris County must have been the deceased person’s county of residence.
• There must be a Will.
• The Will names an executor and the executor is able and willing to serve.
• Heirs of the deceased must be notified according to law.
• If there are minor heirs, the Court will appoint a Guardian Ad Litem (usually a lawyer) to protect their interests.
• The Executor is required to prove that the Will is valid. There are different ways of doing this: by self-proving affidavit (which is part of the Will), by Interrogatories (written questions and answers signed by parties who actually witnessed the signing of the Will), or by testimony of a live witness.
• Parties who want to contest the Probate can do so by filing a written objection, called a Caveat, with the Court.

There is a fill-in-the-blank form for Probate in Solemn Form that you can complete and file with the Court. It is found at http://gaprobate.gov/ at the tab which says “Standard Forms.” (Once there, you will choose which format you wish to use – Word Perfect, Word, PDF, or Fillable PDF. When you make that choice, the menu for Forms will appear). CHOOSE FORM #5.

Sometimes a person dies with a Will but there is reason not to offer it for probate, as in the event that the estate has no property that passes under the Will. In such cases, the Will must still be filed with the Probate court. There is no cost to file a Will not for Probate. You may simply bring the Will to the Probate Court office and the Clerk will file it in for you.

If someone dies and you think that their Will is known to be or believed to be in a safety deposit box, there is a procedure for gaining access to the contents of the box.

An appropriate person can file a Petition for Authority to Enter a Safe Deposit Box. It permits the bank to open and examine the contents of the box in that person’s presence. A written inventory of the contents of the box will be made and signed by the person and by the bank official who views the contents of the box. A copy of the inventory will be provided to the Court.

If a Will is found in the box, the bank must deliver it directly to the Probate Court. Insurance policies may be delivered directly to the beneficiaries named in the policies. The family may also receive burial instructions and any deed to a burial plot. Other property must remain in the box until an Executor or Administrator is appointed.

There is a not an on-line form for this procedure but it is available at the Probate Court office. Please be aware that, when presenting the completed petition to the Court, you will be required to present a death certificate or other proof of the deceased person’s death.

There are multiple possibilities. You should consult with an attorney to determine which is appropriate and most advantageous to the estate.
If someone dies without a Will, the usual procedure is to have an Administrator appointed to take care of that person’s estate. An Administrator is responsible for gathering and distributing the property of the person who has died (for example, bank accounts, real estate, cars, stocks and bonds, and other assets of the person).
Note: If the person who died had a spouse or minor child (a child under age 18), it might be appropriate to file a Petition for Year’s Support. You should consult with an attorney about this option. Year’s Support is briefly discussed below.

There are two forms of Administration which may be filed: permanent and temporary. The following explains some of the basics and the procedure involved.

PERMANENT ADMINISTRATION

A Petition for Permanent Administration can be filed in Harris County only if the deceased lived in Harris County or, in some cases, if the deceased owned real estate in the county.

In an Administration, someone asks the Court for authority to handle the estate of the deceased. A surviving spouse or sole heir is usually entitled to serve as Administrator, unless he or she is disqualified. Otherwise, the person selected by a majority of the heirs is entitled to serve, unless disqualified.
When someone files a Petition for Permanent Administration, all heirs must receive notification that the Petition has been filed. There are specific rules for how this must be done.

If the deceased person had heirs under the age of 18, the Court will appoint a Guardian Ad Litem (usually a lawyer) to protect their interests.
As part of their appointment, Administrators are required to post bond (this is like an insurance policy that protects the assets of the estate) and file inventories and reports with the Court (usually on an annual basis), unless all heirs agree to waive those requirements.
If an heir or creditor of the estate wants to object to the choice of the Administrator, and nominate someone else for the position, they may do so by filing a written objection with the Court.

There is a fill-in-the-blank form for Year’s Support that you can complete and file with the Court. It is found at http://gaprobate.gov/ at the tab which says “Standard Forms.” (Once there, you will choose which format you wish to use – Word Perfect, Word, PDF, or Fillable PDF. When you make that choice, the menu for Forms will appear). CHOOSE FORM #3.

TEMPORARY ADMINISTRATION

A Petition for Temporary Administration can be filed in Harris County if the deceased lived in Harris County.

This procedure is often a stop gap measure which allows a Temporary Administrator to collect and preserve the assets of the deceased. A Temporary Administrator cannot spend money or disburse assets of the estate without a special court order. Temporary Administrators are required to post bond and file inventories and returns. Notice to heirs is not required but a majority of the heirs may select the Temporary Administrator.

Oftentimes, a Temporary Administration is filed until a Petition for Permanent Administration can be done.

There is a fill-in-the-blank form for Temporary Administration that you can complete and file with the Court. It is found at http://gaprobate.gov/ at the tab which says “Standard Forms.” (Once there, you will choose which format you wish to use – Word Perfect, Word, PDF, or Fillable PDF. When you make that choice, the menu for Forms will appear). CHOOSE FORM #2.

The Heirs are the persons who would inherit the estate of a deceased person if that person dies without a Will. The heirs usually are the surviving spouse and children. If you are not sure of who the heirs are, there is an Heir Determination Sheet that might help you answer that question.

A fill-in-the-blank version can be found at http://gaprobate.gov/ at the tab which says “Probate Resources.” (Click that tab; the first item in the drop down menu is “Heir Determination Sheet.”)

When someone dies with a Will, they usually (but not always) leave their property to people. Those people are called

“Heir” does not mean the same thing as “beneficiary”, although an heir may also be a beneficiary.

If someone dies with a Will, the BENEFICIARIES are the persons named in the Will to receive all or part of the deceased person’s property. They are called beneficiaries because they benefit from the terms of the Will. A beneficiary can be a person or an organization (such as a charity or school).

HEIRS on the other hand, are the ones who will inherit the property of a person who dies without a valid Will. The laws of Georgia (called the Laws of Descent and Distribution) establish who a person’s heirs are and who will receive shares of an estate when there is not a will. Generally, the estate will go wholly or partially to the surviving spouse, the deceased person’s children (or if none of them survive, to the grandchildren), the deceased person’s parents, and the siblings. The Heir Determination Sheet can help you figure out who the heirs are in your situation.

You will be required to pay a $160 deposit for Court Costs when you file any Probate, Administration, Guardianship or Conservatorship proceeding. If there are other costs that accrue, you will be required to pay those before your case is filed. The fees charged by the Probate Court are established and set by the Georgia legislature. The Court does not set its own fees.

Year’s Support is an award which may be made by the Court to provide maintenance and support for the surviving spouse and/or the minor children of the person who has died. A Petition for Year’s Support can be filed ONLY by a surviving spouse or minor child/children of the deceased.
One of the benefits of an award for Year’s Support is that it relieves the recipient of having to pay property tax on real estate for one year. Property awarded as Year’s Support is free of all unsecured debts of the estate and take precedence over any disposition made in the Will.

There is a fill-in-the-blank form for Year’s Support that you can complete and file with the Court. It is found at http://gaprobate.gov/ at the tab which says “Standard Forms.” (Once there, you will choose which format you wish to use – Word Perfect, Word, PDF, or Fillable PDF. When you make that choice, the menu for Forms will appear). CHOOSE FORM #10.