Brochure #2

WHEN THERE IS A WILL:

PROBATE OF A WILL IN SOLEMN FORM

Be sure to consult BROCHURE #1: ESTATES OF DECEASED INDIVIDUALS

for general rules that apply to filings in the Probate Court and

for the definitions of the terms that are used in this Brochure

FREQUENTLY ASKED QUESTIONS

1. What happens when an individual dies with a will?

In most circumstances, if an individual dies with a will, the person who is named in the will as the "executor" will "probate" the will.

Even if the will is not going to be probated, anyone who is in possession of the will of an individual who has died must bring the will to the Probate Court for filing.

If the individual has died without a will, consult Brochure #3.

If the individual is survived by a spouse and/or minor children, they may consider filing for Year's Support (consult Brochure #4).

2. What does "probate a will" mean?

The process of probating a will is the formal process by which the Probate Court approves a document as the last will and testament of someone who has died (the "decedent") and appoints someone to handle the distribution of the decedent's property.

3. Who offers the will for probate?

The will is usually offered for probate by the individual who is named in the will as the "executor" - that is, the person who will handle the decedent's property.

4. Where is the will probated?

The will is probated in the Probate Court of the county in which the decedent was domiciled at death.

5. How is a will probated?

Standard Form #5 (Petition to Probate Will in Solemn Form) is usually used to probate a will, although Probate in Common Form may be used as an alternative. Standard Form #5 is filed in the Probate Court along with the original signed will. In addition, Standard Form #6 (Interrogatories to Witness to Will) is also usually required. The Standard Forms are available at the courthouse or online at https://www.gaprobate.org/.

6. How do I fill in Standard Form #5?

A. First, write the name and address of the executor on p. 1, in the blank after "The petition of _____".

B. Write the name and last address of the decedent (Part 1).

C. Fill in the date of the decedent's will (Part 2).

REMEMBER, you must give the original signed will to the Probate Court when you file this form.

D. In Part 3, you must fill in the names, ages, and addresses of the "heirs" (the closest living relatives) of the decedent and tell how each individual was related to the decedent (for example, "sister").

If an heir is over age 18, you can simply write "over 18" for the age.

There are six levels of heirs. You should list on the Petition the name of anyone who is alive and is on the first level. If no one is alive on the first level, then list anyone who is alive on the second level, and if no one is alive on the second level, go on to the third, etc. Once you have found a level on which there is someone alive, don't go on to the next level. The six levels are:

1^st Level: The decedent's spouse, if living, and the living children of the decedent.

Include adopted children and children born out of wedlock.

Do not include stepchildren.

If a child has died before the decedent, list any living children, grandchildren, or other descendants of that child.

2^nd Level: The decedent's mother and father, if living.

3^rd Level: The decedent's living brothers and sisters.

If a brother or sister has died before the decedent, list any living children, grandchildren, or other descendants of that brother or sister.

4^th Level: The decedent's grandparents, if living.

5^th Level: The decedent's living aunts and uncles.

If an aunt or uncle has died before the decedent, list any living children of that aunt or uncle.

6^th Level: All other living relatives

If you are unsure about the name or age or address of an heir, tell the Probate Court what the problem is on Part 4.

E. Part 5 says that you believe that this is the only will of the decedent and that no one else is trying to probate a different will in a different court.

If you think that someone is trying to probate a different document in another place, you probably will need the help of an attorney.

F. Sign the Verification in front of a notary public or a clerk of the Probate Court. In this section, you are swearing that everything in the Petition is true.

7. How do I fill out Standard Form #6 - Interrogatories to Witness to Will?

This form is required unless the will has a "Self-Proving Affidavit" (which usually appears on the last page). If there is no Self-Proving Affidavit, then you must contact one of the witnesses to the will and ask the witness to fill out Standard Form #6 and sign it in front of a notary public. You then must file this form along with Standard Form #5.

8. Who receives Notice of the Petition to Probate the Will in Solemn Form?

Notice must be given to all the heirs of the decedent.

> If any heirs are Georgia residents, they must be personally served by the sheriff of the county in which they reside.

Alternatively, the heirs may waive notice by filing a written and notarized waiver (p. 7 of Standard Form #5). This is much less expensive than having the sheriff deliver the notice personally.

If the heirs live in different places, you may make several copies of p. 7 and have each heir sign a copy and have the signature notarized and then you can file all of the separate copies.

>Heirs living outside the state must be served by the Probate Court by certified mail.

Notice must be published in the county newspaper if the identities or addresses of any heirs are not known

If a publication is required, the Probate Court will collect a publication fee from you and will then handle the publication process.

If there are heirs who are minors or incapacitated adults, or who are unknown or whose addresses are unknown, a guardian ad litem must be appointed.

9. What happens after the will is admitted to probate?

The Probate Court will issue "Letters Testamentary" to the executor. This is the paper that the executor will use when handling the decedent's estate as proof that the executor has the authority to do so.

The executor may want to get some certified copies of the Letters Testamentary as institutions (such as banks) often ask to keep a copy in their records.

10. What fees must be paid to the Probate Court?

Check with the clerk of the Probate Court to see what fees are due upon filing the petition. The Probate Court will accept cash, money orders, or personal checks.

ESTATES OF DECEASED INDIVIDUALS

Brochure #1: Estates of Deceased Individuals: Frequently Asked Questions and Common Terms

Brochure #2: When There is a Will: Probate of a Will in Solemn Form

Brochure #3: Administration of the Estate When There is No Will

Brochure #4: Year's Support for the Surviving Spouse and Minor Children

Brochure #5: Petition for Leave to Sell

* These Brochures were prepared for your use by Judge Marion Guess of the Dekalb County Probate Court and students at the Georgia State University College of Law. They are meant only as simplified guides and should not be considered definitive statements of the law. If you have any questions, PLEASE DO NOT HESITATE TO CONSULT A LAWYER.

DEKALB COUNTY PROBATE COURT

Room 103

Dekalb County Courthouse

556 N. McDonough Street

Decatur, GA 30030

PH: 404-371-2601

FAX: 404-371-7055

WEB: https://www.gaprobate.org/