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Probating a Will
What is Probate?
Georgia and South Carolina are two of fifteen states that have a probate court in each county. In other states, probate matters are handled in the courts of general jurisdiction. That should signal that these states take probate matters very seriously. So what exactly is probate? And why is it so special that it gets its own courts in the CSRA?
Probate is the process by which a will is established and proved to be the testator’s true last will and testament. The legal dictionaries literally define the word as: “to admit a will to proof.” The law presumes that a person has certain heirs. These laws are known as the law of intestate succession. So if a person dies without a will (i.e. “intestate”), her estate assets will pass to her legal heirs, or next of kin. A will essentially breaks the natural passage of assets to the next of kin. For example, if an unmarried woman dies with four kids, the law presumes that her four children are her heirs. (O.C.G.A. Sec. 53-2-1(c)(3); S.C. Code Ann. Sec. 62-2-103). However, if she had a last will and testament leaving all of her assets to her favorite charity, and the will was properly probated, none of her four kids would receive any of her assets, and instead the charity would get everything.
Is probate different from administration?
Although slightly different in procedure, both probating a will and administering an estate take place in the probate court. So what is the difference? Simple. If someone dies “testate,” meaning he had a will, then his will is probated. If someone dies “intestate,” meaning he had no will, then his estate is administered. The person named in the will is known as the executor. If there is no will, the heirs can get an administrator or personal representative of the estate appointed.
Do I need to file a will with the court?
The short answer is yes, but only if the person is deceased. If it is your will, and you are still alive, you need not file your will with the court. This makes sense—nobody knows for certain which court is going to have jurisdiction to probate your will until the day you die. Indeed, since wills can be amended, revised, destroyed, and revoked, it is not even certain until you die that the document you are holding will be a will. The attorneys at this firm have drafted literally hundreds of wills in the CSRA over the years. Its clients lived in and around the Aiken, South Carolina, and Augusta, Georgia areas. Many of these folks moved out of the area and departed life in other areas of the world. If an Augusta client had filed her will with the Richmond County Probate Court and then died ten years later after retiring in Costa Rica, none of her heirs would have been able to find her will.
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