WHY PROBATE IS NOT ALWAYS NECESSARY

07/06/2011

WHY PROBATE IS NOT ALWAYS NECESSARY

by Glenn M. Wall, Attorney at Law

Is a person in possession of a decedent’s Last Will and Testament required to probate that Will?  Not necessarily.

 

Georgia law states that a person holding a decedent’s Will is required only to file the Will with the appropriate probate court, but there is no requirement that the Will be probated.  What, you ask, is the difference?

 

The word “probate” derives from the Latin word probare, meaning “to prove.”  The process of probating a Will involves the filing of a petition with the probate court, asking the court to issue an order that a writing signed by a decedent is his true and valid Last Will and Testament.  As the culmination of the probate process, the probate judge also issues an order appointing the executor named under the Will as personal representative of the estate, with power to marshal estate assets, pay debts and claims against the estate, and transfer title to the decedent’s assets to the beneficiaries named in the Will.

 

When a Will is proved, the probate court doesn’t care about the contents of the document.  If a fellow wanted to leave his entire estate to his lawyer, that does not affect the question of whether the writing is a valid Last Will and Testament (although such a legacy will certainly help any disgruntled heir who wishes to contest the Will based on the decedent’s mental capacity).  Instead, in probate the questions are simply these:  Did the testator sign the instrument in question in the presence of least two witnesses?  And was he, so far as those witnesses could tell, competent at the time and suffering under no duress or undue influence?  If so, the Will is “proved” and, barring any contest to it, will be given legal effect by the appointment of an executor.

 

So what does it mean to file the Will?  Official Code of Georgia Annotated Section 53-5-5 provides as follows:

 

A person having possession of a will shall file it with reasonable promptness with the probate court of the county having jurisdiction.  The probate court may attach for contempt and may fine and imprison a person withholding a will until the will is delivered.

 

Filing does not equal probate.  Instead, filing the Will puts it in the hands of the probate court; it is up to the nominated executor to file the necessary petition to probate it. 

 

But why file the Will without completing the probate process?  Here is a good example: Suppose a husband and wife co-own all of their major assets--home, bank and brokerage accounts, cars, etc.--in a form of ownership known as “joint tenants with right of survivorship.”  Suppose also that the husband owns a life insurance policy and an IRA or 401-K for which he has designated his wife as the beneficiary.  Suppose also that the husband died with a valid Will leaving everything to his wife.  In such a situation, it would not be necessary to probate the Will, since all of the husband’s assets will pass outside his estate to his wife.  That is, the property held as joint tenants automatically goes to the surviving joint tenant (the wife) and the property designating a beneficiary goes directly to the beneficiary (again, the wife).  These are called “non-probate assets,” and, because the husband’s Will is incapable of directing where those assets go, probating his Will would be a waste of time.  (Probating the Will to settle the decedent’s debts is not necessary under these circumstances, since non-probate assets are typically not available to satisfy the demands of the decedent’s creditors.)

 

It is fair to say, then, that in modern times, with spouses tending to own assets together, it may be unnecessary for the surviving spouse to probate the decedent spouse’s Will in a majority of the cases.  This, of course, does not lessen the need for both spouses to have Wills, since one will be required in the estate of the last spouse to die.

 

Glenn M. Wall is an attorney in Suwanee, Georgia. He has helped clients with planning estates, drafting wills, and creating powers of attorney since 1985.