Common Probate Myths

Here we debunk some common myths about the Probate process:

Myth #1 : When someone dies, their debts are erased.

Not really. Most debts will survive. Debts such as medical bills, home & car loans, credit cards, or outstanding taxes need to be paid by the estate (if there are sufficient assets) before any assets are given to heirs or beneficiaries.

Myth #2: If someone who is married dies without a Will, then everything goes to their spouse.

This is true only when the person who died was married and had no children, grandchildren, or other descendants. Otherwise, the assets must be divided among all of their legal heirs. However, it is possible for a surviving spouse to ask the Court to give them all of their spouse’s assets through something called Year’s Support.

Myth #3: If a Will names an Executor, then that person is the Executor, and the Court does not need to get involved.

Only a Court has the authority to appoint an Executor. Technically, when a Will names a person as the Executor, that person is “nominated” as the Executor. To give someone the power and authority to act as Executor, the Court must be involved.

Myth #5: The Executor or Administrator gets to decide who receives assets from the estate and how much.

Generally, the Executor and/or Administrator does not get to decide either who receives assets from the estate or how much someone receives. Georgia law says that an Executor must carry out the Will’s instructions. If an Executor or Administrator does not follow the law, they can be sued for “breach of fiduciary duty,” and may be personally liable. Sometimes a Will gives the Executor discretion, allowing the Executor to decide how to distribute gifts, but this power must be stated explicitly in the Will.  Similarly, an Administrator must follow the law of intestacy. The legal heirs are defined by Georgia law, and it does not matter whether the person “deserves” the inheritance. If a person is a legal heir, then they receive assets from an estate.

Myth #6: If a Will gives something (like a house) to a specific person, then that person must receive that item.

This is true only if the asset is not sold to pay estate debts. Debts of an estate must be paid first, before the heirs or beneficiaries receive anything. If the Executor needs to sell an item that the Will gives to a particular person, then that beneficiary cannot receive that item. But if the asset is not sold or conveyed as part of paying estate debts, and if the Will gives that asset to a particular person, then that person must receive the gift.

Myth #7: If an heir is estranged, then they don’t need to be involved in the estate.

A legal heir, as defined by law, must be involved in the administration of an estate to some extent. However, how much they are involved depends on whether there is a Will.

Whenever a probate Petition is filed, all legal heirs must receive a copy. Even if there is a Will and the heir is not given a gift, they still get a copy of the Petition.

After that, if there is a Will but the estranged heir is not given a gift, then they are not involved any further. But if there is not a Will, then the heir also may receive some portion of the estate, even if they are estranged.

The information above is extremely simplified, and exceptions exist. This article is not legal advice. If you have questions about this information, the attorneys at Georgia Estate Planning & Probate are available to help.