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In a will, if there is only one beneficiary, what must be probated?

Statesboro, GA |

This is in Georgia.
There is a home and two cars involved - do these have to be sold, or can they just be transferred to the beneficiary?

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Attorney answers 5

Best Answer
Posted

Mr. Morgan has given you the answer. Essentially, if assets become part of a deceased person's probate estate (which means by definition that they were owned by the decedent and did not transfer automatically to someone else upon his death by a right of survivorship or a beneficiary designation), then either (1) a Will has to be admitted to probate and an Executor appointed, if there is a Will, or (2) a probate estate has to be opened and an Administrator appointed, if there is no Will. This has to be done because otherwise there is no one with the legal authority to transfer the assets out of the decedent's probate estate to the heirs (if no Will) or beneficiaries (if there is a Will), to pay debts and taxes, file any final tax returns, or do anything else which needs to be done.

This answer is not intended to provide you with specific legal advice regarding your situation, or to create any attorney-client relationship. The intent is only to provide general information. You should be aware that you cannot rely on this answer to provide you with any protection against tax penalties. You should always consult your own attorney in order to obtain legal advice.

Loraine M. DiSalvo

Loraine M. DiSalvo

Posted

I forgot to address your other question - assets can be transferred from an estate by an Executor or Administrator directly to a beneficiary without being sold by the estate (assuming that the assets don't need to be sold to pay debts, taxes, and administrative expenses).

Asker

Posted

Thank you! I appreciate your help.

Posted

If a Will exists, you generally should probate it if significant assets pass into the estate, which it sounds like they do from your question. It does not matter how many beneficiaries there are. The Probate process proves the Will is valid and then ensures that assets are collected and creditors are notified and paid, assuming sufficient assets exist to pay them all, as well as handling administrative functions such as tax return filing requirements. Only after these matters are handled sufficiently do the beneficiaries get to benefit under the Will. If the sole beneficiary is the surviving spouse and no minor children exist, you can also consider the another option of the spouse applying for a Year's Support which can avoid some or all of the unsecured creditor claims, depending on the facts in the case. I strongly suggest that you seek competent legal counsel to help determine what steps should best be taken in your case.

Asker

Posted

Thank you very much for your help!

Posted

You have two good answers.
The short version-probate is the legal process of getting assets out of a deceased persons name.
The court appointed PR can transfer assets to the beneficiary or sell and give beneficiary the cash proceeds after paying taxes and expenses.

The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

Asker

Posted

Thank you -

Joseph Franklin Pippen Jr.

Joseph Franklin Pippen Jr.

Posted

You welcome-you can choose best answer as well as helpful.

Posted

Your first-responder, Mr. Morgan, is correct, of course. I am adding to his answer to place a different emphasis on the probabe process. While most heirs and beneficiaries focus directly on what is to be received, that is only part of the probate process. Probate in general resolves the financial affairs of the decedent. Property must be secured and taken into possession by the personal representative. Claims of creditors must be solicited, and the legitimacy of debts reviewed. How the assets of the estate satisfy the debts and expenses of the estate governs whether properties are liquidated or passed intact. Put another way, assets like homes and cars can be transferred to the beneficiary if there are other cash assets to satisfy the debts and expenses.

Best wishes for a favorable outcome, and please remember to designate a best answer.

This answer is offered as a public service for general information only and may not be relied upon as legal advice.

Posted

Mr. Morgan and Ms. Disalvo have given excellent answers. Let me stress that you want an attorney to advise you on the best process (such as years support if appropriate vs. probate). Bear in mind creditors and taxes have to be addressed, so paying those may force sale of some estate assets.

Certain procedures (such as years support by a surviving spouse) have time deadlines, so getting a lawyer quickly is important.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you. Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.