What Are the Georgia Laws of Intestate Succession — and Why do They Matter to You?
When an individual passes away, their property is distributed to their beneficiaries and heirs. If the deceased person left an estate plan or last will and testament, those documents determine who receives the property. But if someone dies without valid legal documents that distribute their estate, the Georgia laws of intestate succession decide who gets the property owned by the deceased person when they died.
What Is Intestate Succession?
If a person dies without identifying the beneficiaries of their estate in a last will and testament or other valid legal documents, they are described as dying intestate. In that case, state laws of intestate succession identify the heirs who receive (inherit) the property. So, if you do not make an estate plan or a last will and testament, the State of Georgia decides who gets your property. Those persons may not be the individuals you would choose, or the property may be distributed in different amounts than you would want.
The laws of intestate succession distribute a decedent’s property to their nearest living relatives in a specific priority order. The statutes are extremely complex, and can be difficult to apply in some circumstances. In most cases, relatives of a decedent can be identified, but if there are no relatives found who qualify to inherit the estate under the laws, the decedent’s property escheats to the State of Georgia.
Assets that pass by intestate succession are those owned by the deceased person solely in their own name. Some property may automatically pass to beneficiaries and not be subject to intestate succession. Examples include:
- Property transferred into a trust in the decedent’s lifetime
- Proceeds of a life insurance policy
- Funds in an account with a designated beneficiary, like an IRA, 401(k), or other retirement account
- Assets in a transfer-on-death or payable-on-death financial or bank account
- Property owned with another person in joint tenancy with a right of survivorship
Property that passes to heirs by intestate succession must go through the probate process. The assets listed above that pass automatically to beneficiaries do not go through probate.
How Does Intestate Succession Work?
The intestate succession laws establish a priority order in which surviving relatives receive a decedent’s probate property, based on the closest relatives who survive.
If there is a surviving spouse, the spouse’s share of an estate depends on whether there are other living descendants (children, grandchildren, great-grandchildren), as follows:
- If there are no surviving descendants, the surviving spouse inherits the entire probate estate.
- If there are surviving children, the surviving spouse, children, and any descendants of a deceased child share equally in the probate estate.
However, a surviving spouse always receives at least one-third of the estate. So, if there is more than one child, the spouse receives one-third and the children and any descendants of deceased children share the remaining two-thirds equally.
In addition, if a surviving spouse passes away within six months of the deceased spouse, the property is distributed to the surviving spouse’s heirs or beneficiaries as if the surviving spouse had predeceased the spouse.
No Surviving Spouse
If there is no surviving spouse, surviving children and any descendants of deceased children share equally in the estate. Children include both biological and adopted children.
In the absence of both a spouse and children, the estate goes to living parents of the decedent. If there are no living parents, siblings of the deceased person inherit the estate.
If there are no spouse, children, parents, or siblings, the estate is inherited in a priority order by: grandparents (if surviving), then aunts and uncles (or their children, if deceased), then first cousins.
If none of the preceding individuals survive, a distant relative inherits, as determined by a complicated formula contained in the statute. If there are no distant relatives, the State of Georgia receives the probate estate.
How to Avoid Intestate Succession for Your Estate
To avoid having the State of Georgia determine distribution of your estate, you need to establish an estate plan that designates the beneficiaries for your assets. A valid estate plan must meet specific legal requirements under state law. You should consult with an experienced Georgia estate planning lawyer and never attempt to create your own estate documents without help from a knowledgeable attorney.
When you make an estate plan, you accomplish much more than designating your beneficiaries. You can structure your estate to avoid probate, which saves money and keeps your financial information private. You can also control the distribution of your assets to ensure that your legacy stays in the family, and does not get wasted or diverted to someone outside the family.
An estate plan also protects you and your family during your lifetime with other documents that designate someone you trust to act on your behalf in the event of incapacity. These documents are financial powers of attorney and advance directives for health care.
Making an estate plan can accomplish even more, such as helping you plan for long-term care or become eligible for Medicaid. In other words, creating a sound estate plan with help from a Georgia estate planning attorney avoids intestate succession by designating the beneficiaries of your estate and does much more to protect you, your family, and your assets.
Talk With an Experienced Georgia Estate Planning Attorney
Our Cartersville estate planning practice at Asset Protection & Elder Law of Georgia focuses on helping clients plan distribution of their assets to their loved ones, as well as protecting assets during their lifetimes. We provide a broad range of legal services to clients throughout the communities northwest of Atlanta, including in Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County and Paulding County. To schedule a consultation, call us at (770) 382-0984 or contact us through our online form.
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