LETTERS TESTAMENTARY VS. LETTERS OF ADMINISTRATION
In our experience as a Georgia probate attorneys, we have noticed many people are confused by the terms “probating” and “administration” because they often are used interchangeably, even by legal professionals, but their meanings are different. The reason for the confusion likely is caused by the two most common methods for opening an estate: (1) a petition to probate a Will; and, (2) a petition for letters of administration. Both petitions result in the appointment of a person to manage an estate, but they are very different in nature.
Passing With A Will:
Probating is the process by which a Last Will and Testament is proved to the probate court. When a deceased person leaves a Will, an interested party usually will file a petition to probate the Will in the probate court in the county where the deceased resided at the time of death. Typically, the person nominated as executor in the Will does this.
The petition to probate the Will is actually a request made to the court to declare the Will valid. Before the court will do so, it will notify all heirs-at-law of the deceased that the petition has been filed so that the heirs-at-law have an opportunity to review and caveat the Will (i.e., object to the probate of the Will). Reasons for objection vary, but the two most common reasons are lack of capacity of the deceased at the time the Will was made and undue influence of the deceased in the making of the Will. If no objections are made, or if objections are made but ultimately dismissed, the Will is deemed “proved,” the executor is appointed, and the administration of the estate begins.
Passing Without a Will:
A petition for letters of administration is filed where no Will exists. It simply is a request to the court to appoint someone administrator of an estate. Typically, the petition is filed by an interested party (i.e., someone who will receive some benefit from the estate), and the petitioner typically requests to become the administrator. Most often, the petitioner is a relative of the deceased.
As with a petition to probate, the court will notify all heirs-at-law of the deceased that the petition has been filed. Usually, the only objection to be made to a petition for letters of administration is the lack of qualification of the proposed administrator. If the court determines the proposed administrator is qualified, it will issue letters of administration to such person, and the administration of the estate begins.
The term “estate administration,” standing alone, refers to the actual management of the estate, which is conducted either by an executor or administrator and which occurs only after probate is complete.
HOW AN ATTORNEY CAN HELP
- Reviewing and evaluating wills, trusts, and other documents that influence how an estate will be administered
- Filing the appropriate Petition with the Probate Court for the deceased’s estate
- Identifying and distributing assets to beneficiaries and making sure that claims against an estate are addressed in the right order of priority
- Working to make sure debts are identified and creditors are treated appropriately
- Managing uncontested and contested cases in probate court
- Navigating family challenges and conflicts that can have an impact on many cases
WHY CONSULT WITH US
If you have lost a parent, a spouse, another family member, or a friend and have not petitioned the Probate Court or you have been designated the executor of the estate, you will likely have many questions and concerns about how to carry out your responsibilities. We can help you address them. Contact us at any of our 4 office locations to put our knowledge and experience to work for you.