If you die without a will, you are a “decedent.” When that occurs, your property passes through Georgia’s intestate succession laws, which favor blood family over friends, domestic partners, and charities.
Even if intestate succession reflects your wishes, it is still recommended that you have a will in place and take part in estate planning measures. Intestate estates take longer to administer, and property distribution rules are not flexible. There are likely circumstances that require special consideration in an estate plan. Here is an overview of what happens when you die without a will in Georgia.
Georgia’s Intestate Succession Laws
If someone dies without a will, their estate distributes under Georgia’s intestate succession law. Here is how it works if you die with:
- Spouse but no descendants: Your spouse inherits all of your property.
- Children, but no spouse: Your children inherit everything in equal shares.
- Spouse and children: Your spouse and children all receive shares of your property, but your spouse receives at least ⅓ of your total estate.
- Parents but no spouse or children: Your parents or surviving parent receive everything.
- Surviving siblings, but no spouse, children, or parents: Your surviving siblings receive equal shares of your estate property.
This process becomes more complex when you do not have a traditional family structure or no surviving descendants. It emphasizes the primary reason you need a will or other estate plan; the state does not consider unique circumstances, and your property may not distribute according to your wishes.
Most states define a spouse’s share in their intestate statutes, and Georgia is no exception. This rule places a minimum on what a spouse receives from an intestate estate. A spouse’s share cannot be less than ⅓ of the overall estate value in Georgia.
Here is how this works. Let’s say your estate value is $300,000 after your estate administrator liquidates your assets. You have a spouse and four surviving children. In this scenario, your spouse receives $100,000, and the remaining $200,000 divides evenly between your surviving children at $50,000 each.
Knowing what to do when a parent dies without a will becomes more complicated if a parent dies with biological children, stepchildren, and children born outside the marriage. Property distribution depends on these children’s status at the time of death.
Generally, intestate succession automatically grants shares to:
- Biological children
- Adopted children
- Posthumous children (Children conceived before death and born within ten months of death.)
- Children conceived by artificial insemination during the marriage (assuming both spouses consented to artificial insemination.)
- Children born outside of marriage, if there is clear and convincing evidence of your paternity.
- Grandchildren, if that grandchild’s parent is not alive.
While this breakdown considers most circumstances, it will not work well if your family is less traditional. Stepchildren and foster children will not receive an automatic share and may have to petition the court to receive consideration. This issue often arises if you did not adopt your spouse’s biological children.
Also, the court does not consider special needs unless that child or their guardian petitions the court. It becomes especially essential to draft a will if you have an adult-dependent child who cannot live independently. You may also have children who require more financial help and want them to receive trust proceeds or a larger property share. Again, that does not happen unless you have a will.
Finally, understand that Georgia treats “half” relatives as if they are whole. For example, if you share a father with a sibling but have different mothers, that sibling receives property just as though they were a whole sibling. It will not matter if you barely know each other or are estranged.
If you were not married at the time of death and do not have living children, grandchildren, parents, and siblings, the intestate looks like this (in order of priority):
- Nieces and nephews
- Grandnieces and grandnephews
- Aunts and uncles
Just as with other family members, it does not matter if these individuals are estranged from you or if you barely know them. Their family status alone is enough for them to inherit your property.
When your family connections are not obvious, your estate administrator must file a petition opening a 60-day window for potential heirs to step forward. So, the possibility of unknown people benefitting from your estate is high if you do not draft a will or estate plan.
Escheat to State
Your estate escheats to the state if your estate administrator cannot find living relatives. This process involves liquidating your assets and transferring the funds to the state.
Escheat happens rarely. The estate administrator has four years from filing the probate proceeding to find relatives to inherit–no matter their distance from you. Most proceedings end with finding a cousin or other relative. But if all those efforts fail, the state becomes your beneficiary. If no one objects to the escheat process, your estate assets transfer to your county’s board of education.
Fortunately, some assets will not pass through intestate succession laws if you don’t have a will. These assets usually have a beneficiary attached to them. They include:
Living trust property
Life insurance proceeds
Retirement funds, including IRAs and 401ks
Securities held in a transfer-at-death account
Payable on death bank accounts
Some joint property you share with another person
If you own any of these assets, check their status to ensure your beneficiary designations reflect your wishes. Many people remarry or divorce without changing beneficiaries or joint owners, which wreaks havoc when they die unexpectedly. Regular estate planning and asset reviews prevent that outcome.
Has a Family Member Died Without a Will? Call FBA Law Firm
Finnell, Briasco, & Associates offer estate planning services to Georgia residents as well as probate and estate litigation. Contact us online or call us at 770-956-4030 to schedule an appointment and receive a free consultation.