Question: If a person only has a few thousand dollars in the bank and no other assets, should you still file probate if they have a Will?
Loraine’s Answer: If your father had a Will at the time of his death and his principal residence was in Georgia, then you will likely need to offer the Will for probate in order to take control of assets in his probate estate, even if those assets consist only of a bank account with a low balance and tangible personal property of insignificant value. The only possible exception is that, if he has a legal surviving spouse (please note: Georgia generally does not recognize common law marriages unless they were entered under very specific circumstances and only before a certain date, so your father’s “common law wife” may or may not be legally recognized as his wife under Georgia law. I have no way to tell from your post), or if you or any of his other children are under 18 years old, then the surviving spouse and minor children may be able to make claims for a year’s support from the estate and take the bank account that way, without the Will being admitted to probate. Otherwise, unfortunately, Georgia will require that the Will be admitted to probate if there is one, no matter how small the estate.
If there is NO Will, then there are two options that might help in a situation like yours. And there has been some discussion in the past regarding having Georgia adopt a small estates affidavit procedure that would be available to estates like your father’s where there IS a Will. However, at this time no such procedure has been adopted in Georgia.
Please note: if your father’s estate really is as small as you describe, then before you offer his Will for probate, you should also try to figure out whether his estate might be insolvent (more expenses and debts than assets). If your father had any significant debts, such as taxes owed, medical debt, credit cards, and if you probate the Will and get appointed as his Executor, you can find yourself working for the benefit of his creditors. Expenses and creditors get paid in full before any beneficiary gets a penny under the Will. In an insolvent estate, sometimes the best course of action is to file the original Will with the appropriate probate court for “informational purposes only” (this is required by Georgia law if the Will is not going to be offered for probate) and walk away. And when I say walk away, I mean abandon the bank account and any other probate estate assets- don’t touch them or try to touch them. The best advice I can give you is this: get as much information as you can about what debts your father may have and what assets are likely to be in his estate, and then get a consultation with an experienced probate attorney who can help you decide whether it might be worth offering the Will for probate or whether simply filing it for informational purposes and walking away is the better option.
Key Estate Planning Takeaway: Before you offer a Will for probate, try to gather as much information as possible about debts owed by the deceased person and how much is actually in the estate, including bank accounts, brokerage accounts, real estate, and other assets. If it appears that the estate is insolvent, you may be better off filing the original Will “for informational purposes only” with the appropriate probate court and walking away.
I urge you to get a consultation with an experienced probate attorney. The attorney can help you analyze the situation and decide on the best options for you.
This “Q&A with Loraine” blog series features answers from Morgan + DiSalvo Partner Loraine DiSalvo to questions posted on www.avvo.com. A key takeaway from each exchange highlights an important facet of estate planning.
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