Legal Question in Wills and Trusts in Georgia
Five years ago, my wife and I, along with my elderly mother, purchased a house/land package, and all three of us signed the "mortgage," or "deed passing title" as it is called. It was explained to me at the time, or so I remember, that if one of us were to die, the house/land automatically passes to the remaining signees. Now, five years later, my Mom has died, and we are trying to decide whether her estate needs to be probated. I understand that if there is no real estate involved, then it does not have to be. Given the situation, does the estate need to be probated?
2 Answers from Attorneys
The answer depends on the wording on the deeds. Some deeds pass automatically at death. Some do not. I'd have to read the deeds to know.
If they did not pass automatically, a probate is needed. Even if they did, you may in some cases still want to record a proper affidavit to show clear title.
Feel free to call me about this.
Regardless of what the deed says or does not say, an estate may need to be probated for other reasons. These are two different issues.
Land can pass as a joint tenancy with right of survivorship. If these magic words appear on the deed (look under the section titled grantees - it should identify the grantees who are the owners and should indicate whether they are joint tenants with right of survivorship). If the language appears, then the land automatically passed to the survivors listed on the deed. If the language says under grantees, to owners, as tenants in common or just as joint tenants, then your mother's share will pass via her will or the state intestacy laws.
If she lived with you in Georgia, go to your county probate court. Talk with the clerk and bring the will and deed. If probate is not necessary, give the will to the clerk and that is it. If probate is needed and the estate is very small, you be able to use the simplified process for small estates. This will be needed if your mother had a bank account just in her name, for example. If your mother had a lot of debts, then more formal probate may be needed.
Here is a link to the GA Probate Courts where you will find many of the needed forms if probate is warranted:
http://www.gaprobate.org
With respect to probate, did your mother have a will? If so, then the executor named in the will should take the will to the clerk of the probate court in the county/state where your mother resided at the time of her death.
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