Settling Small Estates (GA)
Probate of a Georgia estate may not be required if there is no will, and is not required in any case if the estate contains only assets exempt from probate.
No Administration Necessary
In Georgia, if there is no will and the heirs agree on a distribution plan, you can ask the court to rule that no estate administration is necessary, and to issue an order that all estate assets should be distributed according to the submitted plan.
Requirements
For the court to find that no administration in necessary, all of the following must be true:
- There is no will
- No executor has been appointed
- All heirs agree on a distribution plan for the estate (heirs are determined by family relationship; see GA Code § 53-2-1)
- Any known creditors agree to the plan
Process
In Georgia, each county has a local probate court. If you are using EstateExec and you enter the decedent's county of legal residence on the Decedent tab, you will see a direct link to the appropriate court here, usually with more detailed information about the court than the limited search link in the preceding sentence.
To have the court issue a No Administration Necessary order, an heir must submit a Petition for Order Declaring No Administration is Necessary (Form GPCSF-9) to the appropriate court. The petition must contain:
- Name and address of the decedent
- Name, address, and ages of the heirs
- A copy of the death certificate
- A statement that there are no creditors, or that any known creditors have consented to this plan or will be sent notice of this petition (see GA Code § 53-11-3 for instructions)
- A detailed list of estate assets
- A notarized distribution plan signed by all the heirs
If the estate contains any property subject to a lien (such as a mortgage), then the consent of the lien-holder must be included as well, or the lien-holder must be notified of the petition as per above.
Once the court approves a petition, it will issue orders to effect the submitted distribution plan.
See GA Code § 53-2-40 for statute details.
Deposit Affidavit
Alternatively, if there is no will and a given financial institution (such as a bank) holds up to $15K for a decedent, immediate family members (or the funeral home) can request to have those funds directly distributed to themselves.
Requirements
To use this approach, there must be no will, and the requester must be related to decedent in the following way:
- Spouse
- If there is no spouse, then to the children equally
- If there are no children, then to the father and mother equally
- If there are no parents, then to the siblings equally
If more than 45 days have passed since the death, and no other claims on the funds have been made, creditors for the funeral or expenses from the last illness may submit such a claim.
If these funds are the only assets of the estate, the estate may not require any probate-related proceedings at all. When determining estate contents, do not include assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To obtain rightful possession of such funds, submit a Financial Institution Statutory Affidavit to the financial institution holding the funds (or create your own – see GA Code § 7-1-239 (e) for the required format).
Note under the law, payment by the financial insitution under these terms is "authorized", not "required". Some financial institutions may refuse to honor such a request, and require official probate anyway.
See GA Code § 7-1-239.
No Small Estate General Affidavit
Many people ask about using a small estate affidavit for assets other than "small" bank accounts, but Georgia does not support such an affidavit. You must use one of the above methods (or full probate) for handling small estates in Georgia.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any GA Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you are still entitled to Executor Compensation in GA, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so you should arrange to have all debts resolved before distributing assets. In fact, if any creditor objects to a Petition for Order Declaring No Administration is Necessary, the judge will not allow the simplified probate procedure to move forward. Consequently, any submitted distribution plan should include details on how all debts will be resolved. After submitting a Petition for Order Declaring No Administration is Necessary, any known creditor who has not already agreed to the petition should be notified of the petition (see GA Code § 53-11-3).
When using this simplified procedure, it is NOT necessary to publish a notice to creditors as described in Finding Estate Debts in GA, but doing so can better protect the heirs from previously unknown creditors, who would normally have the right to sue heirs for the value of any distributions received.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Additional Information
If your estate doesn't qualify for a small estate approach, or you're simply interested in exploring standard probate, take a look at Probate in GA.
And since probate is just the court-supervised subset of winding up a person's affairs after death, you'll probably want to check out our Complete Guide to Estate Settlement in GA.
Finally, in case you're interested, details about handling small estates in other states can be found here: