Question: My wife passed away, and I was the executor of her Will. Before she passed, she signed the title of her car over to our son. I paid her credit card bills, and she had no debts other than medical bills that arrived later. When I filed her Will at the courthouse, I told them that it didn’t need to be probated because virtually nothing was in her name, and she did not have many assets. What is the purpose of probating a Will?
Loraine’s Answer: Probate allows the court to determine whether a purported Will reflects the actual last wishes of a deceased person. A Will admitted to probate becomes legally binding. An Executor (or an Administrator with Will Annexed) is appointed with the legal authority to carry out the terms of the Will, assuming there are sufficient assets left after debts, expenses, and taxes have been paid. Without probate, the Will is just a piece of paper that has no legal effect, and no one would have the legal authority to deal with the person’s assets.
To determine whether a Will must be admitted to probate after the death of the person who wrote it, you have to determine whether any assets became part of that person’s probate estate. The probate estate will include (A) all assets the deceased person owned in her individual name, including both assets for which the deceased person was the only owner and assets that the person owned jointly with another person, if the jointly owned asset was held as tenants in common and not as joint tenants with rights of survivorship; and (B) all assets that are payable to the person’s estate under a beneficiary designation or other contractual provision at the person’s death. If the deceased person held any jointly owned assets with another person as joint tenants with rights of survivorship and the other owner survived the deceased person, the deceased person’s interest in the joint asset does not become part of the deceased person’s probate estate (it passes to the surviving owner). If the deceased person held any asset subject to a beneficiary designation, such as a beneficiary designation on life insurance or an IRA or a payable on death (“POD”) or transfer on death (“TOD”) designation on a checking, savings, or taxable investment account, and if the designated beneficiary or beneficiaries were all parties other than the deceased person’s estate, then those assets do not become part of the person’s probate estate.
If your wife owned any assets that became part of her probate estate (other than non-titled tangible personal property such as clothing, jewelry, furniture, etc), then her Will likely needs to be offered for probate. Otherwise, there is no one who has the legal power to deal with the estate’s assets. For example, if your wife had owned your home in her individual name (or if you and she owned it jointly, but as tenants in common and not as joint tenants with rights of survivorship), or if she owned any bank or brokerage account in her individual name, then those assets would have become part of her probate estate, and you would need to probate her Will to deal with them. This is true in Georgia even if the value of the probate estate is not large.
If the only assets other than non-titled tangible personal property that your wife owned all passed to others at her death under some combination of rights of survivorship and beneficiary designations, then you likely do not need to offer her Will for probate, because there would be no assets that the Will needs to control. Please note, however: Even if the Will does not need to be offered for probate, under Georgia law whoever has possession of the original Will is required to file it with the appropriate probate court for informational purposes only. You can’t just keep the Will. You should consult an experienced probate attorney if you have any questions about how to determine whether a Will must be offered for probate or simply filed for informational purposes only, and what steps to take in order to carry out the needed actions.
Key Estate Planning Takeaway: The purpose of probate is for the court to determine if a Will reflects how the deceased person wished to distribute his or her assets. Probate is required in order to give the Executor appointed by the Will the legal authority to deal with assets in the probate estate. If there are no significant assets that become part of a person’s probate estate, there may not be a need to probate the person’s Will. However, a court filing will generally still be required, because a deceased person’s original Will must generally be filed for informational purposes only even if it is not being offered for probate.
This “Q&A with Loraine” blog series features answers from Morgan + DiSalvo Partner Loraine DiSalvo to common questions. A key takeaway from each exchange highlights an important facet of estate planning.