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Do I Need To File For Probate?

April 21, 2011

By: J. Cale Rogers

Coleman, Chambers & Rogers, LLP

This article is intended for educational purposes only and is not intended, nor should be construed to provide legal advice.

If you have recently found yourself named as the executor of a family member’s Last Will & Testament, you may have asked yourself whether it is necessary to file the Will for probate. The answer depends on the specific circumstances surrounding the relevant estate. Essentially, the purpose of probate is to establish that the document that names you as executor is in fact the “Last” Will & Testament of the decedent. After all, it is the Last Will & Testament of the decedent (as opposed to some prior will that may have been executed) that determines the disposition of the assets of the estate.

In order to determine whether an estate needs to be probated, one must first understand the difference in the types of assets that pass upon one’s death. Generally, there are two types of assets: probate assets and non-probate assets. Probate assets are those that pass through the decedent’s estate, and non-probate assets are those that, while owned by the decedent at the time of his death, pass outside of probate, usually by survivorship rights or beneficiary designation. Non-probate assets may be transferred to the relevant beneficiary without initiating the probate process and without qualifying as the representative of the estate. Common examples of non-probate assets include life insurance proceeds (so long as the estate is not the beneficiary of the policy) and real estate held pursuant to a Joint Tenancy With the Right of Survivorship. Many financial and brokerage accounts are beneficiary designated accounts as well. These assets can generally be accessed by the person entitled to receive them upon presentation of an original death certificate to the financial institution with control of the asset.

Probate assets, on the other hand, are assets that the executor cannot obtain access to without presenting Letters Testamentary (the official Order that evidences that Probate has been completed) to the individual or entity in control of the asset. Financial accounts without a beneficiary designation are probate assets. Real estate that is titled in the name of the decedent alone, or in the name of the decedent and another co-tenant without a specific designation of survivorship is a probate asset. An interest in a corporation, LLC or partnership is oftentimes a probate asset. Personal property (which would include automobiles) is generally a probate asset. To the extent that there are any probate assets that the executor does not have the authority or ability to convey to the beneficiaries, filing the Will for probate will likely be necessary.

If there are no probate assets or insignificant probate assets it may not be necessary to probate a Will. However, where probate assets exist, it is generally necessary to probate the Will to gain access to the assets. Call the probate lawyers at Coleman, Chambers & Rogers, LLP, today to discuss questions about probate assets with an experienced probate attorney.

About the author: Cale Rogers is a partner and attorney with Coleman, Chambers & Rogers, LLP, in Gainesville, Georgia. The law firm regularly handles matters in Probate Court in almost all North Georgia counties including: Hall County (Gainesville), Dawson County (Dawsonville), White County, Forsyth County (Cumming), Lumpkin County (Dahlonega), Union County, Habersham County (Cornelia, Clarkesville, Baldwin), Towns County (Hiawassee), Stephens County (Toccoa), Rabun County (Clayton), Banks County (Homer), Fulton County (Atlanta), Gwinnett (Lawrenceville, Buford) and Jackson County (Jefferson). Please call our family law attorneys to discuss your options. Please call 678-601-2495 .