Assume that an elderly widow passes away, leaving behind a formal will
which directs that all of her assets be divided evenly among her two
adult children.  At what moment do these assets officially become the
property of the two children?  The reason for the question is that a
significant portion of the assets in question consisted of a stock
portfolio.  Accordingly, in order to determine the value of the stock
portfolio for the purposes of dividing up the assets, one must first
know the date on which the assets were officially transferred so that
the stock portfolio can be valued as of that date.  In case it matters
at all, the widow was a resident of Georgia when she passed away.

Dear peterstone1-ga;

Thank you for allowing me to answer your interesting question. It is
important first to mention that we cannot, by policy, provide legal or
medical advise in this forum. What we do provide you with is research
about published law. So let?s begin by defining some relative probate
terminology for the sake of the statutes that will follow:

Intestate: a person who does NOT have a will at the time of their death

Testate: a person who DOES have a will at the time of their death.

Testator: the decedent who drafted the will.

Now, according to Georgia State Code the finalization of a will is the
moment upon which the heirs officially lay claim to the property of a
benefactor. Until such time as the statutory requirements are
fulfilled the matter remains unresolved and the property technically
remains in the ownership of the decedent (usually controlled by an
appointed administrator of the estate, trustee, or power-of-attorney).

?The trustee or trustees of a trust created under Code Section
53-12-51 shall have sole and exclusive management and control of the
property, in accordance with the terms of the deed creating the
estate. The exercise by the trustee or trustees of any power granted
or conferred by the deed, including the power to lease, encumber, and
sell, when exercised in accordance with the terms thereof, shall be as
valid and effective to all intents and purposes as if the trustee or
trustees were the sole and exclusive owners of the property in his or
their own right. The trustee or trustees may resign or be removed and
their successors may be appointed in the manner and in accordance with
the terms fixed by the deed creating the estate. The same rights,
powers, and title over and to the property shall belong to and be
vested in the new trustee or trustees as are conferred upon the
original trustee or trustees by the deed creating the estate. The
death of a trustee shall not operate to cast title upon his heirs,
devisees, executors, or administrators, but the same shall vest in his
successor, when appointed.?
GEORGIA CODE 53-12-55
http://www.legis.state.ga.us/legis/2003_04/gacode/53-12-55.html

The finalization of the will occurs when the court deems that all
statutory requirements have been met and the administrator has signed
an affidavit that he has performed all the probate duties conferred on
him by his appointment over the estate:

?(a) A personal representative who has fully performed all duties or
who has been allowed to resign may petition the probate court for
discharge from the office and from all liability. The petition shall
state that the personal representative has fully administered the
estate of the decedent and shall set forth the names and addresses of
all known heirs of an intestate decedent or beneficiaries of a testate
decedent, including any persons who succeeded to the interest of any
heir or beneficiary who died after the decedent died, and shall name
which of the heirs or beneficiaries is or should be represented by a
guardian. The petition shall state that the personal representative
has paid all claims against the estate or shall enumerate which claims
of the estate have not been paid and the reason for such nonpayment.
The petition shall also state that the personal representative has
filed all necessary inventory and returns or, alternatively, has been
relieved of such filings by the testator, the heirs or beneficiaries,
or the probate court.?
GEORGIA CODE 53-7-50 (excerpt)
http://www.legis.state.ga.us/legis/2003_04/gacode/53-7-50.html
(there is more to this statute so please examine this statute in its entirety) 

So, in answer to your question, at a minimum (barring any problems
that might arise which would otherwise interfere with the discharge of
a will), the will is discharged from probate when the petition if
filed and all other legal requirement are met and approved by the
probate court. It is at this point that the property bequeathed by the
deceased person officially becomes the property of the heirs. It is
important to note that the discharge of the will hinges in part on the
agreement among the heirs and it greatly simplifies things if there is
no contest among them as to the equitable distribution. The legal
description of the property conferred to the heirs is detailed in the
final order from Probate Court and the value of the property may be
determined for the purposes of distribution at that time unless the
heirs mutually agree to calculate the value in some other fashion. If
there is disagreement among the heirs they can expect the probate
process to be substantially more complicated and perhaps delayed for
an inordinate period of time, during which, of course, the market
value of the disputed property might rise or fall depending on the
economy. At any rate the notarized date on the final order from
probate court is the date the distribution technically takes effect.

I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.

Best regards;
Tutuzdad-ga ? Google Answers Researcher



INFORMATION SOURCES

Defined above


SEARCH STRATEGY


SEARCH ENGINE USED:

GEORGIA GENERAL ASSEMBLY
http://www.legis.state.ga.us/cgi-bin/gl_codes_detail.pl?code=1-1-1


SEARCH TERMS USED:

GEORGIA

PROBATE

WILL

TESTATE

LAW

PROPERTY

ADMINISTRATOR

HEIRS

Timely answer and solid response.

I would imagine each child gets half the shares which they can then sell at will.

It is the job of the Probate court to determine the validity of the
will and legally passes it on to her heirs.  They can not sell until
probate is finished.    If she died on 1/1/05 and probate states the
will is valid and good on 1/7/05 even if the stock plumits from 100.00
to 10.00 you can't do anything during this period. Sounds like a case
of sour grapes.

This is such a weird question

Here is the website of a Georgia lawyer who offers a free online consultation:

http://www.1800probate.com/probate-lawyer/georgia.html

I believe Peterschan-ga's information is incorrect.  I did not find
confirming data for Georgia, but in other states it is clear that with
the approval of the probate court, the executor (other titles in some
states) can sell assets of the estate, indeed, to provide cash for the
estate tax, he may have to.

Peterwchan, it is a very important question. In addition to the need
to value the portfolio for distribution, there is an important tax
consideration. The heirs inherit at the price of the stock on the day
they actually receive it, per probate. This becomes their basis for
determining tax liability. If Grandma bought AT&T stock at $5 in 1963,
that stock is now worth about $300 per share. Should the kiddies sell
the inherited stock, they would pay taxes on the gain... except since
they inherit at the "stepped up" amount, their "cost" for each share
is $300 and taxable profit is calculated from there. If granny had
sold it one day before her demise, her taxable profit would be figured
from $5 per share (or whatever price the asset was purchased at).

[Okay, okay, before everyone starts hollering about how AT&T isn't
$300 per share-- between splits, dividend reinvestment, and spinoffs
since 1963, it is.]

This applies to houses, too.