The following article was written by Albert Caproni III, and was featured in the January/February 2015 volume of Current Accounts published by the Georgia Society of CPAs. For more information about developing an estate plan or the probate process in Georgia, please contact our office.
Introduction. In my law practice, I often encounter people that do not have a Will. Sometimes, they know they should have a Will but just have not gotten around to having one prepared. A significant number of people, however, do not have a Will because they assume they know what will happen with their assets if they die without a Will. These assumptions are often wrong or only half right. This article sets out the consequences of death by a Georgia resident who does not have a Will. Please note that the law of the state where you live at the time of your death will govern and Georgia law does differ in several ways from other states.
Single? If you are not married (whether never married, divorced or widowed), and die without a Will, Georgia law will cause your assets to pass in equal shares to your living children and the descendants of any deceased child of yours. If you have never had any children, your assets will pass to your surviving parents equally (or to your sole surviving parent if one is deceased). If both your parents are deceased, your assets will pass in equal shares to your surviving siblings (or nieces and nephews, who take the share that would have gone to their parent (your sibling)). There are specific rules provided by Georgia law for more remote family members, such as nieces, nephews and grandparents, depending on who is then living.
Married? If you have no Will and are married with children at the time of your death, your assets will be divided between your surviving spouse and your children. If you have two or fewer children, your spouse and each child will receive an equal share. Three or more children will split two-thirds of your assets among them, with your surviving spouse receiving one-third. This pattern is rarely what the deceased had in mind or would have chosen.
Please note that a pending divorce does not change these results. If you are married at death (regardless of whether you are legally separated or not), your spouse still inherits his or her share. Also note that the recent Federal court cases upholding same sex marriage are not honored in Georgia. Thus, even if you are married for Federal purposes, if you die in Georgia without a Will, your partner/Federally recognized spouse will not inherit.
Similarly, married couples with children from prior marriages or relationships may wish to treat those children differently than children from the current marriage. If there is no Will at the time of your death, however, all of your children are treated the same.
Minor Children? If you die without a Will, and are survived by minor children, their share will most likely be controlled by their guardian absent a formal appointment of a conservator for them. That person may be an appropriate choice, but is often an ex-spouse which the deceased would not have wanted in control of the children’s inheritance. Further, upon attaining age 18, the minor child will receive his or her share of the inheritance, regardless of the financial skills or lack of skills the child possesses.
Further, if the other parent of your minor children is not then living, it will be up to a court to decide who will become the guardian of your minor children. In contrast, a Will allows you to designate who you would like to have in that role in the event of your untimely death.
Probate Process. If you die without a Will, your affairs will be administered by an “Administrator” appointed by the Probate Court. Absent agreement among your heirs, a bond will have to be posted with the Probate Court by the Administrator and that individual will have to obtain Court approval to sell any assets that need to be sold.
Probate vs. Non-Probate Assets. Georgia law, if you have no Will (or your Will if you have one), operates on your “probate” estate, but does not govern non-probate assets. Non-probate assets include jointly owned bank or brokerage accounts and real estate that is owned as joint tenants with rights of survivorship, which pass to the surviving owner regardless of your Will or Georgia’s intestacy laws. Other non-probate assets include life insurance on your life and retirement accounts (such as IRAs, 401(k) accounts, etc.), which pass to a designated beneficiary (or beneficiaries). These assets will only pass to your estate if you name it as beneficiary or fail to have a beneficiary (as where your named beneficiary predeceases you). Keep the distinction between probate and non-probate assets in mind when determining how your Will should operate.
Conclusion. If you have any property or have children, you should have a Will. Even those with simple financial affairs should use a Will to dictate who inherits their assets, when assets should be distributed, and what protections or “strings” are included for family members lacking in financial skills.