What will happen if I don't file an estate in probate court in Georgia?

Asked about 3 years ago - Atlanta, GA

My mother is on hospice and is expected to pass soon. She has no will, my father is dead and I am her only child. She has one sister alive who I am estrange from. She has a small apartment with basic household stuff in it, nothing valuable. She has a checking account with little money in it. She has already titled her car to me before she got sick.

I have been told that I have to file her estate with the probate court, wait to be assigned the administrator and then go from there. But there is nothing to distribute. In GA, I am entitled to everything anyhow being her only living child.

What if she and\or I don't have the money to hire an attorney and file the will with probate? Are there legal ramifications for me not doing so? What will happen to me?

Attorney answers (5)

  1. Loraine M. DiSalvo

    Pro

    Contributor Level 16

    1

    Lawyer agrees

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

    If your mother lives in Georgia (for purposes of this answer, I will assume that she does), if the only assets your mother owns at the time of her death are tangible personal property and a checking account, and if the checking account has less than $10,000 in it at the time of your mother's death, then you, as her only adult child, may be able to close the account using an affidavit under O.C.G.A. Section 7-1-239, without first getting appointed as an administrator. You may also be able to take possession of her personal property without first getting appointed as an administrator. However, please note that you should still deal with any debts your mother may owe at the time of her death, using her remaining assets - you are not free to keep them if there are unpaid debts, even though you may be allowed to close the account. In addition, you may not be able to deal with everything you need to deal with if you are not first appointed as the administrator of her estate. It does sound as if you would be her sole heir. This actually should make the process of getting appointed as the administrator relatively simple: you will need to file a Petition for Letters of Administration. You can get a copy of this form at gaprobate.org. When filling out the form, requesting a waiver of bond and inventory and the grant to you of "certain powers" can prevent you from needing to take many of the more costly and complex steps during the administration process. While it is frequently advisable to hire an attorney to help you, you may well be able to fill out the Petition for Letters of Administration yourself. You would also need to publish a Notice to Debtors and Creditors once you have been appointed as Administrator. Depending on the county your mother lives in, you may be able to find some free help - for example, the Fulton County Probate Court and the Estate Planning & Probate Section of the Atlanta Bar Association run a "Probate Information Center" at the Fulton County Probate Court's main office. Other courts may have similar programs. In addition, many attorneys may be able and willing to give you advice on filling out the form and completing the process in a consultation, without you having to hire the attorney on an ongoing basis and have the attorney handle most or all tasks for you.

    My condolences to you and your mother during this difficult time. As the first respondent said, please try not to worry about what happens after your mother passes much now. Instead, please try to spend whatever time she has left with her. Best wishes to you both.

  2. Mark Schaefer

    Contributor Level 10

    1

    Lawyer agrees

    Answered . I agree with all that Ms. DiSalvo told you. The bank affidavit will allow you to access the little money that your mother has as long as it is less than $10,000.

    There is no legal requirement that anyone file a petition with the probate court. You should only file one if there is something that you want to be able to do and you cannot do it without court authorization. There are often estates where the person who died owed more to creditors than his or her estate is worth. In such a situation, it may make perfect sense to just walk away. You can't take anything with you, but you have no obligation to administer the estate if your don't want to.

    If there are no debts and you have titled assets that you want to get into your name after your mother dies, you can also file for an order of No Administration Necesssary, which is usually quicker and less expensive than a petition for letters of administration.

    If you found this answer helpful, please click on the Up arrow below.

  3. Glen Edward Ashman

    Pro

    Contributor Level 20

    Answered . If there is nothing to probate, you may not need to file for probate.

    Small bank accounts in Georgia can often be transfered with just a death certificate.

    So if you're actually the sole heir, assuming she dies with no assets to speak of, you likely have no problems with no probate.

  4. Robert W. Hughes Jr.

    Pro

    Contributor Level 13

    Answered . You are not required to open an estate for anyone in Georgia. As her next of kin, you may well be entitled to all of her assets when she passes away and if you need Letters of Administration in order to transfer any assets, you will have to open an estate. On the other hand, if all there is are personal property assets and they are worth very little in the way of value, you should be safe taking those assets into your possession, and moving on without doing anything more. You should not accept mail addressed to your mother or to her estate after she passes away. You should simply write “Addressee Deceased” and return to the sender. You have no obligations to deal with her creditors.

  5. Kelly M. Shovelin

    Contributor Level 13

    Answered . It sounds as though your mother will have a relatively small estate when she passes. If she has a checking account with only her name on it, then you will not be able to close out the account unless you are appointed Administratrix of her estate by the clerk of court in the county where your mom resided prior to passing away. It may not be feasible for you to circumvent probate. If the cost of an attorney is the concern, you may be able to speak to the clerk of court directly about the forms that need to be completed (although they will not be able to give you any legal guidance specifically). Otherwise, you may need to either contact legal aid (a free service offered to qualifying low-income low-asset individuals) or else consult with a probate attorney in your area (who may be willing to provide a complimentary consultation wherein you may receive the information you need to proceed on your own). Regardless, please do not worry about these financial issues at this time. Instead, take the time to spend these last days with your mother, as she most certainly would appreciate.

    The comment provided above is intended as general information and IS NOT LEGAL ADVICE. You should consult an... more

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