The death of a loved one or a close friend can be a very difficult and emotional time. You’ve been named as executor in the will and probably have a lot of questions about what an executor does (or does not do), the process for submitting a will for probate in Georgia, and what to expect as you embark on this important (and sometimes daunting) role, which includes trying to honor the memory and wishes of your loved one or close friend, as well as follow state law.
Scared? Nervous? Unsure of where to start? The information below is meant to provide you with some idea of what normally must be done to administer an estate in Georgia after a loved one has passed away. Please note that although this list is intended to give you an understanding of the estate administration process, it is not a substitute for competent legal advice.
Immediate Concerns. Immediate concerns typically relate to arranging Funeral or Memorial Services and determining the immediate needs of the survivors.
- Arrange for care of minors or family members who are unable to care for themselves
- Arrange for Funeral and/or Memorial Services
- Arrange for care of pets or farm animals
- Determine the immediate needs of survivors such as cash needs
- Stop the mail, newspapers and other deliveries as appropriate
- Locate and provide safekeeping for business and personal assets
- Locate and provide safekeeping for documents and records
Starting the Probate or Administration Proceeding. Probate is the legal name of the process of transferring property – the “estate” – from a person who has passed away to the beneficiaries named in his or her Will. Administration is the legal term used for this process if the person who passed away did not leave a will.
- Locate any Wills and/or Trusts (if any)
- Select an attorney to represent the estate
- Collect names, addresses and phone numbers of the beneficiaries and immediate family
- Start to collect asset and debt or liability information
The Legal Process of an Estate Administration. After you have selected an attorney, he or she will handle any necessary legal filings with the Probate Court in the county in which your loved one or close friend lived at the time of their passing and as such much of the following list will be done by, or at the direction of, the attorney.
- Obtain Waiver and Consent forms from the beneficiaries and/or heirs
- Prepare and file the appropriate Petition for filing with the Probate Court
- Determine the need for Ancillary Probate (for out of state property)
- Prepare and file an Inventory of Estate Assets
- Publish a Notice to Debtors and Creditors in the local newspaper within 60 days of beginning to serve as executor
Typical Executor or Administrator Duties. The main duties of an Executor include the collection of assets, the payment of debts and expenses, and other miscellaneous duties. An Executor should be careful regarding the payment of expenses as certain expenses are considered priority expenses which should be paid first. This is especially important if there are not enough assets to pay for all of the administration expenses and debts. Under Georgia law, the family is paid first and can petition the court for a year’s support for the spouse and, if applicable, any children under 18 years of age. After that come funeral expenses, costs of probate, expenses of the last illness, and taxes, in that order. If there are not enough funds in the estate to pay these expenses, you should get legal advice before taking any action to pay out any amount of money from the estate.
Collection of Assets
- Notify banks to arrange for opening safe-deposit boxes and prepare an inventory of items found in the safe-deposit boxes
- Collect any checking, savings or other bank accounts
- Contact Life Insurance companies to start the claim process
- Contact employers to collect any wages, death benefits or pensions due
- Collect all stock, bond and mutual fund share certificates and calculate date of death values for all stocks, bonds and mutual funds (as these assets obtain a stepped up basis for tax purposes)
- Secure rental property – confirm proper insurance, arrange for property management, pay any taxes and collect rents
- Arrange for the management of any business and decide if it should be sold
Typical Payment Duties
- Pay for or reimburse for the Funeral Bill
- Pay for or reimburse for any Court Costs
- Pay Inheritance Tax due
- Pay for Priority Administrative expenses – Accountant Fees, Appraiser Fees, Attorney Fees, Executor Commissions, etc.
- Pay any personal taxes or real estate taxes due
- Pay any final medical bills
- Pay for any other debts and liabilities
Other Miscellaneous Duties
- Obtain a Tax Identification Number for the Estate
- Open estate checking and/or savings accounts
- Arrange for appraisals of real property (real estate)
- Arrange for appraisals of personal property (coin collections, jewelry, etc.)
- Arrange for appraisals of business assets
- Establish and fund any trusts set up in the will
- Contact the property insurance company to notify of death & check coverage
- Sell or dispose of any perishable items
- Continue and/or settle any claims or lawsuits
- Contact the beneficiaries of any charitable gifts
Income and Estate Taxes. After a loved one passes away they will likely still have to file income tax returns. An estate may also have income tax returns (“fiduciary” returns) to file similar to an individual. Also, an estate may have gift tax and/or estate tax returns to file.
- Notify the IRS and State Agencies of your authority to act (Federal Form 56 – Notice of Fiduciary Relationship)
- Prepare and file any final federal and state Personal Income Tax Returns (IRS Form 1040 and Georgia Form 500 to report the income and expenses of your loved one for the period(s) before death)
- Prepare and file any federal and state Fiduciary Income Tax Returns (just like individuals, estates may have to file returns and pay taxes based on income and expenses from the date of death until the estate has been settled)
- File any gift tax returns as necessary
- File any federal and state estate tax returns as necessary and pay tax due. (This is often referred to as the “death tax”.
Distribution. After all of the assets have been collected and all of the expenses and debts have been paid, any remaining assets should be distributed to the beneficiaries.
- Prepare an accounting of the estate (The beneficiaries are entitled to a report of the assets and income collected by the estate, the debts and expenses paid, and what remains to be distributed to them.)
- Obtain receipt and release agreements from the beneficiaries approving the accounting and acknowledging their share of the estate
- File the appropriate paperwork with the Court to discharge you from your duties and close the estate
Please note that this information is provided to help you and other survivors understand the estate administration process and give you some idea of what you can expect during the estate administration process. However, because every estate is different, some of the items listed above may not apply in your particular situation. Also, you may have additional requirements that are not listed above depending upon your loved one’s unique situation.
The information provided was developed based on Georgia estates. For more Georgia-specific information, check out this handbook prepared by the Georgia Council of Probate Court Judges and the Fiduciary Law Section of the State Bar of Georgia: http://gaprobate.gov/sites/default/files/probate/Duties%20of%20PR_8.5×11.pdf.
Need assistance submitting the will to probate and navigating being executor? Please call Stone & Sullivan, LLC to set up an appointment to discuss our helping you in this new role.