What is Intestacy?

Updated: Aug 13, 2020

What is Intestacy? Intestacy is when a person dies without a will or estate plan.  If you die without a will in Georgia, you are said to die intestate. This means that your property will be distributed according to guidelines determined by Georgia law and not...

Intestacy is when a person dies without a will or estate plan.  If you die without a will in Georgia, you are said to die intestate. This means that your property will be distributed according to guidelines determined by Georgia law and not according to what you might have wanted.  

If You Die Intestate, What Happens to Your Assets?

If you die intestate, the proportion in which your heirs inherit is decided based on statute  O.C.G.A. § 53-2-1 . It won’t matter if you had a modest estate or one worth millions. It won’t matter if you didn’t speak to your parents for years. It won’t matter if one child took care of you, while the others did nothing. It won’t matter if you were separated (but not yet divorced) from your spouse. It won’t matter if you wanted everything to go to your favorite aunt. The law will control what happens; not your wishes. 

Georgia law states that heirs for one who dies intestate are as follows:

  • The spouse if there are no children (and no children who died before the decedent leaving living children of their own or descendants of living children)

  • The spouse and children if there are children, and the children of any child or children who died before the decedent (as well as the deceased child’s descendants if any of the deceased child’s children also predeceased the decedent)

  • The parents if there is no spouse or children, descendants of deceased children, grandchildren, etc.

  • If no spouse, children, descendants of children, or parents survived the decedent, the brothers and sisters of the decedent and the descendants of any deceased brother or sister who predeceased the decedent

  • If none of the above were living at decedent’s death, the grandparents

  • If none of the above, uncles and aunts and descendants of any deceased uncle or aunt, but if all uncles and aunts are deceased, then first cousins share equally, rather than siblings taking their parent’s share

The more remote degrees of kinship are determined by a mathematical formula involving the relative in question and the closest common ancestor. If the analysis gets this far, it is best to consult O.C.G.A. § 53-2-1(b)(8) to determine who inherits your estate.

If a Person Dies Without a Will, Do Some Heirs Inherit More than Others?

Under Georgia law, at each level everyone shares in the estate equally, except if your spouse survives you and you also had children. If your spouse and children survive you, then your spouse gets a minimum of ⅓ of your estate and the remainder is split among your surviving children and your grandchildren, if any of your children died before you. If there is only one heir left, then that person will inherit everything.

Who is in Charge of Distributing Property When Someone Dies Without a Will?

The Probate Court will oversee the process of distributing property when someone dies without a will.  The Probate Court makes sure that all of your heirs inherit based on these proportions. The assets to be distributed by the Probate Court are called your probate estate. Your probate estate includes both your personal property and real property, depending on how it was held and with whom.  

Remember: your personal property includes your money and your stuff. Real property is any land or houses you own at the time of your death. Some of your assets are considered “non-probate” assets, like insurance policies, bank accounts, and investments. Those assets will be transferred based on plans you put in place using beneficiary designation forms associated with those types of assets, not the laws of intestacy. Whoever is named as the beneficiary on those forms will be the person who gets that money.

These laws only apply if you die without a will. If you have a will or a trust, then a different process governs what happens to your estate. If you have a written plan that follows the requirements of the law, that is the plan that controls what happens with your estate not the laws of intestacy. 

What Happens in Probate Court?

If you die without a will (because you didn’t have one or your will fails for some reason), someone will likely need to file a Petition for Letters of Administration with the Probate Court in the last county where your lived prior to your death in order to deal with your estate. Sometimes a Petition for Order Declaring No Administration Necessary is appropriate. Advice from an experienced Georgia probate lawyer can help determine which petition is best. 

The purpose of the Petition for Letters of Administration is for that person to be named by the Probate Court as Administrator of your estate and to give that person the legal power over your estate. The Administrator is the person responsible for paying your final expenses, dealing with creditors, and distributing your estate as required by law.

Who Can Be an Administrator for an Estate?

Anyone can file to be named as the Administrator of your estate, even if they were not related to you and even if you didn’t know them very well during your lifetime. If the petitioner is over the age of 18 and has capacity (as a matter of law), then that person can file to administer your estate. 

The Petition should list all of your heirs at law. These individuals will be informed of the petition and will have an opportunity to either agree to the petitioner being named as an administrator or to file an objection to the petition. 

Heirs are not required to agree that the petitioner should be named as the administrator. Heirs should only agree if they feel that the petitioner will do a good job administering the estate. If an heir wants to object, the objection to a probate petition is typically called a “caveat.” There is a very short time frame in which to file the caveat. If it is not filed on time, then the court may grant the petition and appoint the petitioner as the administrator of your estate.

Once issued Letters of Administration, the petitioner becomes the administrator and is given the power to collect your assets and then distribute them as described above — all while the Probate Court is watching. 

If you need assistance with the probate process for the estate of someone who died in Georgia without a will, The Sullivan Law Firm can help. Please call or email us today to schedule an initial consultation. 

How do You Avoid Intestacy?

If you want to avoid the uncertainty of intestate succession and have control over what happens to your estate, then you need to have a properly drafted and executed estate plan. And your heirs need to be able to find it (see Where do You Keep a Will). Your estate plan can be centered around a will or centered around a trust. Regardless of which option is most appropriate for you, you should have something in place. Everyone needs to Protect Loved ones & Assets Now – what we call a P.L.A.N.™

You owe it to yourself and your loved ones to create a PL.A.N. (Protect Loved ones & Assets Now).™ A P.L.A.N.™ allows you to decide what is best for you and for those you leave behind, and to make sure that your decisions are clearly communicated and honored. A P.L.A.N.™ provides purpose, direction, and control.

At The Sullivan Law Firm, we look forward to working with you to create a P.L.A.N.™ that reflects your instructions, goals, and expectations for your things. Call or email us to get started on putting your P.L.A.N.™ together today.

Relevant Links for Intestacy in Savannah, GA:

Probate Court for Chatham County

What Happens if I Die Without a Will in Georgia

Key Terms to Understand Intestacy

Testate: the condition of having died with a valid Last Will and Testament that covers at least part of the decedent’s assets. 

Intestate: The condition of having died without a valid Last Will and Testatement (can also be partial) 

Testator/Testatrix: Person who makes a Last Will and Testament 

Decedent: Person who passed away

Devisee/Beneficiary/Heir: One or more individuals who receive assets from a decedent 

Probate Estate: Assets that cannot be transferred to others after death without going through the probate/estate administration process

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