A probate is a court document that officially declares the existence of an effective Will through the confirmation of a signed oath of the testator, who is typically the individual who created the Will. Probate has important legal implications in terms of the administration of wills, trusts and estates. It is important to understand that the Probate court does not deal in estates or trusts, however. A probate lawyer represents individuals who have been adversely affected by probate and there are significant estate planning issues involved when a probate action is taken.
The primary function of the probate lawyer is to make sure that the wishes of the deceased person who had been appointed as the administrator of his or her estate are being fulfilled. There are a number of reasons why a will is needed or why a person might want to make a will. Anyone wanting to establish a will must consult with a county clerk or the local courthouse to make certain that the procedures required are being followed. In cases where the deceased had no will, the court will determine if a will is necessary and a probate lawyer can then advise the client regarding the implementation of his or her will. Most importantly, the lawyer must establish communication with the dead person’s agent, whether called a personal representative, attorney, or agency.
If no will exists, the court must appoint an individual to act as the executor of the Will. An appointment to the probate court is made either through the state court registry or directly with the court. Once appointed, the executor is responsible for taking care of all acts and transactions governed by the Will, including distribution of property and inheritance taxes.
The probate judge is primarily concerned with two things: protecting the interests of those left behind by the deceased and ensuring that the wishes of the deceased are executed properly. He is also charged with assessing and collecting all the deceased’s debts and assets. The debts and assets must be appraised and paid according to law. If the probate judge determines any of the assets are beyond his powers to assess or pay, the court can order them sold.
Although there are several choices for who will be appointed to administer the Will, the best choice is usually the executor chosen by the deceased. Anyone appointed by the probate court is not necessarily qualified to administer the Will because he or she must have a legal education and experience in estate law. Additionally, it is always better to choose an individual who is closely related to the deceased, such as a spouse, sibling, or parent. In this way, there is a higher chance that the will is properly executed and no issues arise concerning inheritance tax or probate.
It should also be noted that if the Will did not list a surviving spouse, then both the surviving spouse and the beneficiaries will be the ones to inherit the property. However, it may be possible for the Probate Court to appoint someone to the Will, so both the estate and the beneficiaries are protected. According to a probate lawyer serving in all of Georgia, once the probate court determines who will administer the Will, they must make an authorization or certification that states the validity of the Will and its contents.