Information on how to probate a Georgia Last Will and Testament, time limits, rights and responsibilities of executor and beneficiaries.
There are two ways of probating a Will in Georgia: common or solemn form.
Common Form of Probate
This is the ‘informal’ type of probate. It is available where the original Georgia Will is in possession and has been signed and witnessed. No notice is required to be given to any person (only after the Will has been accepted).
A petition needs to be filed with the court requesting probate in common form and issuance of letters testamentary (appointing the executor named in the Will as personal representative).
The Georgia Last Will may be proved using one witness’s testimony. If the Will is self-proved, then no further witness testimony is required from the subscribing witnesses. § 53-5-17
Once the court is satisfied with the petition, it will grant probate of the Will in common form.
Solemn Form of Probate
This is a formal probate proceeding where validity of the Will is decided conclusively.
A petition to probate a Georgia Will in solemn form must be filed with the court.
Notice of the petition must be given to all heirs and beneficiaries personally or by publication in accordance with section 53-5-22.
If the witnesses are alive and in the jurisdiction, then they must either provide testimony by being examined in person or by responding in writing to written interrogatories under oath before a notary public. The court has the power to compel the attendance of a witness. § 53-5-23
If no caveat is filed, then only one witness needs to provide testimony orally or in writing.
If the Will is self-proved then no testimony is required unless rebutted. § 53-5-21
The court will accept probate in solemn form and will issue letters testamentary to the executor if:
- All heirs acknowledge service of the petition and notice and assent to probate; and
- If there are no other proceedings pending in Georgia with respect to the probate of another purported Will of the decedent. § 53-5-21(2)
Who can offer a Will for probate?
Only the executor may offer a Georgia Will for probate. If the executor fails to do so within a reasonable time (or if no executor is named), then any interested person may petition for probate. § 53-5-2
A Georgia Last Will and Testament cannot be offered for probate after five years from the later of:
- Appointment of a personal representative; or
- An order that no administration is necessary on the deceased estate. § 53-5-3
Filing the Georgia Will
The person who has a testator’s Last Will and Testament in their possession is under an obligation to file the original with the probate court with reasonable promptness. If the person withholds the Will, he/she may be fined and imprisoned until the Georgia Last Will and Testament is delivered. § 53-5-5
Georgia Estate Tax
Georgia’s estate tax is based on the federal estate tax. There is no inheritance tax in Georgia. The estate tax is payable by the estate before distribution to the beneficiaries in accordance with the Georgia Will. Individuals do not pay tax on their inheritance. The amount payable is based on the federal amount allowable as a credit for state death taxes.
If the estate is required to file a federal return (Form 706), a copy of same must be filed with the Georgia department of revenue together with payment of the Georgia estate tax. There is no Georgia estate tax return form.
If no federal estate tax return is required to be filed, then no filing is required with the department of revenue.