When a person passes away, the law requires that a series of procedures be performed to ensure that the deceased person’s (referred to as the “decedent”) affairs are settled. This includes collection and preservation of the decedent’s assets, payment of the decedent’s debts, and ultimately distribution of the decedent’s assets to the entitled party or parties. This “process” occurs in one of three forms:
“Probate (or Testate) Administration” refers to the process wherein the person who has passed away has executed a valid Last Will and Testament. In this case, the Last Will and Testament is presented to the Probate Court in the County in which the decedent resided at the time of his or her death, along with a formal petition detailing the specific requirements as mandated by applicable law. Upon approval of the petition and Last Will and Testament, the Probate Court will “admit” the Last Will and Testament to probate, and will issue a document entitled “Letters Testamentary.” This document acts as a Court Order, and will allow the petitioner to transact all of the decedent’s affairs.
“Intestate Administration” refers to the process wherein the person who has passed away has not executed a valid Last Will and Testament, and has died without any legal or binding document that provides for the administration of his or her estate. In this case, a petition is filed with the Probate Court in the County in which the decedent resided at the time of his or her death, detailing the specific requirements as mandated by applicable law. Upon approval of the petition, the Probate Court will issue a document entitled “Letters of Administration.” This document also acts as a Court Order, and will allow the petitioner to transact all of the decedent’s affairs. However, in this situation, applicable law of that State will control what procedures and rules must be followed, including how the decedent’s assets are ultimately distributed, and to whom.
“Years’ Support” refers to a process wherein the surviving spouse and/or minor child(ren) of a deceased person file a formal petition with the Probate Court in the County in which the decedent resided at the time of his or her death, requesting that the Court enter an order awarding, or giving, all of the decedent’s assets to the surviving spouse and/or minor child(ren), without regard for payment of the decedent’s debts. This process is often used in conjunction with one of the other processes, to maximize the amount of assets ultimately distributed to the entitled party or parties.
"Litigation" is the term used to describe what the parties involved in one (1) of the three (3) situations above do when they can not agree on the probate or administration of the decedent's affairs. Such disputes range from disagreements regarding the validity of the Will, who should or should not serve as Executor or Administrator, and who should receive certain of the decedent's assets. During "litigation," the parties often participate in depositions, court hearings and trials, in an effort to cause the judge or jury to decide the case in their favor. "Litigation" in Probate Court's is actually very common.
In addition to the private practice of law, Mike Smith has served as the County Administrator and County Guardian for Gwinnett County, Georgia, since 1993, representing contested and unrepresented estates in legal matters, and providing fiduciary services. He has represented over three thousand (3,000) estates during his career in both his appointed capacity and in the private sector, ranging from the simple, uncontested matters, to the very complex, contested cases, many of which involved significant litigation. Often, Mr. Smith is called upon to resolve complicated tax issues relative to an estate administration, and in many cases involving taxable estates, can utilize post mortem tax planning strategies to eliminate or minimize tax consequences to estates, thereby preserving more assets for the entitled party or parties. In litigation matters, several lawyers and support staff work on cases at varying stages, depending on the particular lawyer's areas of expertise.
If you wish to contact Mr. Smith about an estate administration matter, it will be helpful, though not mandatory, that you gather the following information: a list of assets and the aggregate approximate value; a list of debts and the aggregate approximate total; a complete list of the full legal names and addresses of the decedent’s spouse and children; copy of the Last Will and Testament, if one exists; and a certified copy of the death certificate.