Detailed Answer
Before opening probate in Georgia, you must locate and verify the decedent’s original will and any codicils. Superior courts will only admit original signed documents for probate. Follow these steps to find and confirm the authenticity of these estate planning instruments:
1. Search Personal Records and Safe Deposit Boxes
Many individuals store wills in home safes, filing cabinets or safe deposit boxes. Under O.C.G.A. § 44-12-240, you may petition the superior court for an order to open a sealed safe deposit box if the decedent’s will is believed to be inside. Provide notice to co-renters or other entitled parties before opening.
2. Contact the Decedent’s Attorney or Financial Institutions
Attorneys often hold original wills for safekeeping pursuant to professional practice. Similarly, banks may store wills in safe deposit holdings. Reach out promptly to any law firms or financial institutions the decedent used. If you locate a will this way, retrieve the original signed document and any attached codicils.
3. Check with the Clerk of Superior Court
Georgia law allows testators to deposit original wills with the clerk of superior court for safekeeping. See O.C.G.A. § 53-4-50. Contact the clerk’s office in the county where the decedent lived or where the will may have been deposited. Review their records for a sealed will filing.
4. Verify Proper Execution
To admit a will to probate, it must meet Georgia’s formal requirements. Under O.C.G.A. § 53-4-20, the will must be in writing, signed by the testator (or by another at the testator’s direction) and witnessed by at least two credible witnesses. For added authenticity, a self-proving affidavit executed before a notary public can eliminate the need for in-court witness testimony. See O.C.G.A. § 53-4-61.
5. Handle Lost or Destroyed Wills
If you cannot locate the original, you may still seek to probate a copy under O.C.G.A. § 53-4-51. You must prove by clear and convincing evidence that the original was last in the decedent’s possession, was not revoked or destroyed with intent to revoke, and that the copy is a true and correct transcription or photocopy.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance specific to your circumstances.
Helpful Hints
- Begin your search with the decedent’s most frequented locations: home office, bedside table or safe deposit box.
- Ask family members or close friends if they recall where the decedent stored the will.
- Review the decedent’s financial statements for safe deposit rentals or attorney fees.
- Keep a record of all communications with banks, attorneys and the clerk’s office.
- If a self-proving affidavit exists, attach it to the will to streamline probate proceedings.
- If you suspect multiple codicils, verify each attachment date and sequence to ensure the correct estate plan.