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How long do you have to probate a will

Lawrenceville, GA |

My dad let my mother some land

You are not required to probate a will. However, you are required to file the will with the probate court within a reasonable time after the death of the person. Reasonable could be anywhere from a few weeks to several months. If you have a will that needs to be probated, you are better off starting the process sooner rather than later.

Attorney Answers 2

  1. IT seems like there are two possible questions here. First, "how long do you have to probate a Will?" this could me "how long can you wait to initiate a probate?" or it could mean "once started how long can a probate last?"

    The answer to both questions will vary from state to state. However, in general, there is no time limit for how long you can wait to start a probate. As a practical matter, if a probate is not initiated in the first couple of years, life will move on, people will act on the best information that they have at hand and the ability to unwind things will diminish over time. Eventually, even though all of the actions may not have been proper, the statute of limitations will run and it will not be possible to correct the errors.

    Once started, most probates last between 9 months and two years depending on how complex the affairs of the decedent are. If the parties dispute matters, it can last many years.

    The land that your father left your mother may pass without a probate and may not be affected by a probate if one was started. Most families transfer land between spouses by deed of gift or by tenancies that operate outside of the probate system. You can check the deeds records in the county where the land is located to see if this applies to this situation.

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    hope this helps.
    James Oberholtzer is licensed to practice law in the Commonwealth of Virginia and the States of Illinois, Oregon and Washington. He has offices in Chicago, Illinois and Portland, Oregon. His law practice focuses on estate planning, probate administration, family succession planning, tax,real estate and tax exempt organizations.

    The foregoing statements do not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your state. The law changes frequently and varies from state to state.

  2. This answer is not intended to provide you with specific legal advice regarding your situation, or to create any attorney-client relationship.

    My condolences to you on the loss of your father.

    The additional information posted with your question is essentially correct, in that probate in Georgia is not necessarily required if there is a Will, but that someone in possession of a person's Will is required to at least file that Will with the appropriate probate court within a "reasonable" time after the person's death.

    Even though you are not required to submit a Will for probate in Georgia, if there are any assets which have become part of the deceased person's probate estate, and the person did have a Will, then it IS necessary to submit the Will for probate and have an Executor appointed. The appointment of an Executor is required if there are assets in the probate estate because only a properly appointed Executor can transfer the assets out of the probate estate. If the deceased person did not have a Will, and if all the heirs agree on the division of the property, then it might be possible to do a Petition for No Administration Necessary, and transfer the property that way. However, where there is a Will, the Petition for No Administration Necessary is not available. Georgia does not have a "small estate" procedure.

    The first step is really to determine whether assets actually became part of your father's probate estate at his death. If an asset passed to a specific person under a beneficiary designation (common with life insurance or retirement savings accounts such as IRAs), it is not part of the probate estate. If an asset passed to a surviving joint owner under a right of survivorship, then that asset is not part of the probate estate. However, just because an asset was jointly owned does not mean it passed by right of survivorship. You have to look at what type of asset it is, and how title to it is held. The default rule for Georgia bank accounts is that a joint account is held by the owners as joint tenants with rights of survivorship. The default rule for Georgia real estate is the opposite - joint owners hold as tenants in common unless the deed to the property specifically states that they hold it as joint tenants, or with rights of survivorship, or some similar language making clear that rights of survivorship were intended. Finally, if your dad owned an asset (real estate, bank accounts, or otherwise) in his own name (not jointly), and that asset did not pass to someone under a beneficiary designation, transfer on death registration, or payable on death designation, that asset is likely part of his probate estate.

    After you determine whether an asset is in the probate estate, the next step is to determine whether a valid Will exists. If it does, then the Will will need to be submitted for probate and the Executor appointed.

    You are not required to hire an attorney to help with the probate process in Georgia, but I strongly encourage you to consult with one. An experienced attorney can help you more quickly figure out how your father's assets passed, whether his Will does need to be submitted for probate, and how to ensure that his estate is properly dealt with.

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