About Probate

Under Georgia law, probate is required as a part of personal injury damage claims in certain circumstances. One often unexpected but nonetheless common scenario occurs when a minor is injured in a motor vehicle accident, and the gross amount of settlement will exceed $15,000.00. See O.C.G.A. § 29-3-2.


The reasons that even relatively modest net settlement amounts must be reviewed and approved by a probate judge are at least twofold. First, probate judges serve to protect the interests of minors by making sure that a settlement agreement fully considers all the damages (physical, emotional, psychological, etc.) that the child has endured and is likely to undergo during the duration of his or her recovery. One would expect that the parent(s), guardian(s) and lawyer(s) to act in full accordance with the child’s best interests, but sadly this is not always the case. The second reason a probate judge must review and approve gross settlement amounts exceeding $15,000.00 is that regardless of the net amount to be distributed, the majority of the money, if not all of it, actually belongs to the minor child. This can come as a surprise and shock to many parents and/or guardians, but the simple fact is that the child is the one who was in the accident, wreck or collision. Surely, parents and guardians can be financially and emotionally impacted by the suffering of their child, but under the law the money that is to be paid for the auto-injury damages claim is the property of the child. As the child is not capable, legally or otherwise, to handle, manage and steward the proceeds, the probate judge will often appoint a conservator or require establishment of a trust in order to ensure that the child’s money remains available when he or she becomes an adult. Of course, as with most areas of the law things are never black and white, and exceptions abound. One common exception is reimbursement to parents or guardians for some or all of the auto-injury related bills and expenses that they can occur during the course of treatment and claim resolution.

A second common reason probate is required under Georgia law occurs when the estate chooses to bring a claim on behalf of a deceased individual. If the deceased individual has a will, the named Administrator must bring the claim. However, if the deceased individual does not have a will, Georgia law of intestacy governs who can bring the claim. O.C.G.A.§ 53-2-1 et seq. Note that estate claims are not wrongful death claims where probate is not normally required and the claim is based primarily on the value of a decedents life. An estate claim is allowed and indeed required for tort claims such as pre-death pain and suffering, medical bills, funeral costs, punitive damages and other damages not related to the value of the deceased person’s life. These claims must be probated, and can be subject to debts and other expenses normally associated with probate of an estate. Given the different legal postures of wrongful death claims and estate claims for pain and suffering, etc., it is important your attorney consider all scenarios and coverages before deciding on whether to pursue one or both claims on behalf of the deceased individual and his or her family or estate.