My mother died on October 27th of this year. She had a will. I am not sure that it is valid, but it names me as the Executor. Two witnesses signed in the presence of a notary and there is a self-proving affidavit as well - also signed/notarized by the witnesses. The witnesses are not receiving anything in the will. There is nothing to bequeath but her home that has a HELOC on it. She also has a car - but that has a title loan on it and there are many creditors (credit cards, etc.). There is not a lot of cash-on-hand in her bank accounts. Could they possibly make me sell her home to pay off her debts? How does the HELOC get paid? What is the next step? I know I file the will with the probate court, but beyond that I have no clue. I can't afford a probate attorney.
I agree with Mr. Ashman- you really, really, should at least get a consultation. The general process, assuming the Will is valid (sounds like it might be but I couldn't tell you without actually seeing it), is to offer it for probate - preferably in solemn form (instead of common form). That requires all heirs to be notified and given a chance to consent or object. The Petition should be prepared, all signatures from willing heirs obtained, and the Petition, the original Will, and a death certificate submitted to the probate court of the county where your mother had her principal residence at the time of her death (I've assumed that was in GA; if not, this answer may not even be correct). The person nominated as Executor in the Will is the petitioner, normally. The Executor gets appointed and must then proceed to determine what assets are there, what debts may exist, and notify all known or discovered creditors. The Executor also has to publish a Notice to Debtors and Creditors in the appropriate county legal newspaper. The next steps are to determine what gets paid and in what order. The beneficiaries under the Will are last in line behind all other claimants.
You will need to proceed very carefully in order to avoid becoming personally responsible for debts. The house may indeed need to be sold in order to pay creditors, if there aren't enough other assets, but creditors get different ranks depending on the basis for their claims and paying anything out of order creates a big problem. The HELOC would get paid first out of the proceeds, if the house is sold, but otherwise other debts may have a higher priority (some could also have a lower priority). If there is any question at all whether the debts can all be paid in full, you have to be extra careful before paying anything.
If you REALLY, truly, believe that you cannot afford an attorney, and if your mother lived in either DeKalb or Fulton County, Georgia, at the time of her death, then you may be able to receive some help through the court's respective probate information programs. Each of those probate courts has a program in conjunction with the Atlanta Bar Association where volunteer attorneys come on certain days and help people like you who are facing the need to deal with the estate of a loved one. Other courts may have similar programs, if the estate won't be in either DeKalb or Fulton County. You should contact the probate court and find out.
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I am sorry for your loss. You cannot afford NOT to see a lawyer. The cost of a consultation is minimal. Do NOT go to the court before seeing a lawyer; many common pro se mistakes are costly and unfixable. Creditors generally come ahead of heirs, so provisions have to be made to satisfy creditors before heirs get anything, and yes, that may mean selling assets. A good attorney may help you negotiate some bills down and can save you money. Bear in mind that if you proceed pro se and make mistakes, the creditors you mention can sue you.
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I'm sorry for your loss. You should have the Will reviewed by a competent attorney to determine whether the Will is valid. It sounds as though the Will is valid based upon your explanation. Upon a determination that the Will is valid, you will need to have filed a petition for probate in the county where your mother lived. Upon acceptance of the petition by the court and after notice has been published in the county's legal organ, the probate court will issue Letters Testamentary which will give you the authority to carry out the terms of the Will. You should contact a local attorney to assist you with the process.
This answer is for informational purposes only and not intended to be legal advice. Further, this answer does not establish an attorney-client relationship.
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