Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed Georgia attorney for advice on your specific situation.
Detailed Answer
When someone dies in Georgia with a will, the will controls the distribution of assets that pass through probate. However, certain real property interests transfer automatically at death by operation of law or by established nonprobate methods. Understanding the difference can help you plan your estate and decide if you still need to probate your will.
1. Automatic Transfers Outside Probate
- Joint Tenancy with Right of Survivorship: Property held as joint tenants passes to the surviving joint tenant(s) automatically. No probate is required. (O.C.G.A. §44-5-30: law.justia.com/codes/georgia/2010/title-44/chapter-5/section-44-5-30/)
- Tenancy by the Entirety: Married couples own undivided interests. Upon one spouse’s death, the other spouse takes full title automatically.
- Transfer-on-Death (TOD) Deeds: Georgia law allows a deed that names a beneficiary to receive real property at death without probate. (O.C.G.A. §44-4-230 et seq.: law.justia.com/codes/georgia/2010/title-44/chapter-4/article-1a/)
- Life Estates with Remainder: If you grant a life estate and name a remainder beneficiary, the remainder interest vests automatically at death of the life tenant.
- Revocable Living Trusts: Real property titled in a revocable trust bypasses probate and passes to named beneficiaries under trust terms.
2. Why You Still May Need to Probate the Will
Even if some real property passes outside probate, a will remains the roadmap for distributing your probate assets. Probate accomplishes the following under Georgia law:
- Will Validation: Probate court confirms the will’s authenticity and compliance with O.C.G.A. §53-4-20 (law.justia.com/codes/georgia/2010/title-53/chapter-4/section-53-4-20/).
- Asset Inventory and Creditor Claims: The executor inventories assets, notifies creditors, and settles debts per O.C.G.A. §53-2-242 (law.justia.com/codes/georgia/2010/title-53/chapter-2/article-3/section-53-2-242/).
- Clear Title for Probate Property: For property held in sole name or as tenants in common, probate court order or letters testamentary provide authority to transfer title at the county register of deeds.
- Distribution of Residue: After debts and taxes, probate distributes the remaining estate according to the will’s terms.
Helpful Hints
- Review your deed to determine how each parcel is titled.
- Consider a TOD deed for valuable real estate to avoid probate.
- Keep your will updated to reflect life changes, beneficiaries, and assets.
- File probate promptly after death to comply with timelines under O.C.G.A. Title 53.
- Consult a Georgia probate attorney for contested estates or complex real property holdings.