What Happens If You Die Without a Will in Georgia?

Updated

Taking care of the loose ends that a loved one leaves behind is rarely easy. The added confusion that can come when there’s no will makes it even more challenging. Fortunately, Georgia law makes it relatively easy to manage the estate of someone who died without a will, especially if all the heirs and creditors can reach an agreement. 

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While all of Georgia’s options for dealing with intestate estates require some interaction with the court, the state offers expedited processes for small, uncomplicated estates. 

For better and worse, the intestacy laws decide which family members inherit when there’s no will. The laws create a uniform, consistent way to handle estates when the decedent didn’t make a will, but they often fail to capture challenging family dynamics. Accordingly, making a will remains the best practice, even in states with simple probate processes. 

Georgia’s Intestacy Laws Explained

When someone dies without a will to tell loved ones how to handle their assets, Georgia’s intestacy laws fill in the gap to determine who inherits. 

The intestacy laws establish a priority for inheritance. To use them, start by identifying whether the decedent had a surviving spouse, children, or grandchildren. It might also be necessary to look for parents or siblings of the decedent, depending on the family structure.

If an heir predeceased the decedent, the heir’s heirs could inherit in their place. For example, the three surviving children might plan to split their inheritance three ways. However, if they had a fourth sibling who died with children of their own, that sibling’s children would inherit their parent’s one-fourth of the estate. 

The intestacy laws determine inheritance based on the legal relationship of the heirs to the decedent. As a result, only the surviving spouse and biological or legally adopted family members can inherit. Unfortunately, this can exclude the close relationships of step-children and dear friends and overlook charitable giving. 

How Does Probate Work in Georgia If There Is No Will?

Georgia offers several options for taking care of the estate of a loved one.

No Probate by No Administration

Estates without conflict among the heirs or creditors can sometimes avoid the probate process by requesting a determination of no administration from the court. 

The no administration avenue becomes an option when the heirs agree to file a distribution plan with the probate court. An heir files a Petition for No Administration Necessary with the court to start the process. The petition details the distribution of all of the decedent’s property and requests the court to forgo traditional probate and appoint a personal representative. Instead, the court would approve the proposed distribution plan.

This process requires complete agreement from everyone involved. Heirs must sign their agreement to the distribution plan before a notary. Creditors must also consent, and they can object to the petition if they disagree with the plan. 

The court still requires a filing fee to file the petition for no administration. Delays slow down the process if you submit an incomplete petition. A notice period for creditors and other interested parties prevents this from being an immediate process. However, even with these bumps, the petition for no administration necessary yields a faster, easier process than traditional probate.

If you’ve dealt with loved one’s assets in other states, you may be familiar with a small estate affidavit. Most other states allow heirs of low-value estates to transfer the decedent’s assets by affidavit rather than going through the full probate process. Georgia uses the no administration process instead of an affidavit. 

Petition for Letters of Administration

To open a traditional probate case, also called an administration, an heir or other interested party starts by filing a Petition for Letters of Administration. That initiates the process for the court to appoint a personal representative to administer the estate. 

From there, the court schedules a hearing date or notifies the petitioner if the petition was deficient. The court also determines whether a citation is needed, prepares notice, and serves or publishes the notice. 

After being appointed, the personal representative manages the estate by gathering and securing the assets, paying bills and debts, and distributing any net property. While probate laws provide guidance and rules for executing these tasks, the court does not oversee every step of the process in the typical estate. Of course, the court remains the decision-maker in the event of a conflict. The court can also remove the personal representative and sanction them if they act inappropriately.

The court can issue either temporary or permanent letters of administration. The temporary letters limit the personal representative’s ability to act to collect and hold the decedent’s property. Permanent letters allow for collecting, holding, and distributing estate assets.

Non-probate transfers

Most people engage in estate planning without even realizing it—naming beneficiaries to accounts or entering joint survivorship property ownership. 

Much of what would be the estate’s liquid assets, like bank accounts, life insurance, and retirement and investment account balances, often have a beneficiary designated through the account custodian. 

These designations override wills or intestacy laws, and they direct that the asset goes to the named beneficiary. As a result, that beneficiary should be able to collect the asset without any probate orders. Usually, the custodian requires a death certificate and proof of the beneficiary’s identity.

When searching for non-probate assets, another good place to look is at properties like houses or land. The deed may indicate the decedent and another person owns the property in joint tenancy with the right of survivorship. That designation means the surviving co-owner owns the entire property upon the decedent’s death. 

Finally, trusts are one of the most significant and widespread ways to avoid probate. People can place their assets in a trust during their lifetime and maintain control and use over their property. They can also name the successor trustee and set plans for the future distribution of the assets through the trust. 

Who Typically Inherits Assets in Georgia If There Isn’t a Will?

In Georgia, as in most other states, the spouse and descendants of the decedent are most likely to inherit. 

It is important to know that when discussing the intestate heirs of a decedent, we don’t only consider their children their descendants. Sometimes children predecease their parent, and the decedent’s grandchildren could inherit in their parent’s place. 

The spouse inherits the entire probate estate when there is no will if the decedent leaves no descendants. Likewise, the children inherit everything when there is no surviving spouse. 

When someone dies with both a spouse and descendants, the spouse and descendants equally share the property.

When someone passes away without a spouse for descendants of their own, their parents inherit any property they leave behind. If their parents died before them, they would inherit any siblings they have.

Frequently Asked Questions: Dying Without a Will in Georgia

While the laws of intestacy apply anytime someone dies without a will or has their will invalidated, it can be challenging to apply them to some family situations. In contested or confusing scenarios, it’s always good to consult an experienced probate attorney for a customized opinion for your family.

Does a spouse automatically inherit everything in Georgia?

A surviving spouse does inherit the entire intestate estate in Georgia, provided the decedent left no descendants like children or grandchildren. When the decedent has descendants and a surviving spouse, they would share the intestate estate.

How long does probate take if there’s no will?

The length of time it takes to probate an intestate estate varies based on several factors. Some are consistent among estates, like allowing several weeks for the court hearing and three months for notice to creditors. Others rely on individual estate factors.

The speed with which an estate can be concluded is heavily dependent on how quickly and diligently the personal representative works. For example, a personal representative who can devote time handling the estate’s creditors and finding and transferring assets can wrap up an estate faster than a personal representative who only works sporadically. 

The final closure of the estate can be delayed if there is a need to wait until tax filing open. Still, the personal representative should be able to distribute the bulk of the estate and only reserve some funds for the owed taxes. 

Are there any probate exemptions if you die without a will in Georgia?

If your loved one dies without a will in Georgia, there are several scenarios in which you may not have to go through full probate. 

First, evaluate whether the decedent's assets transfer outside of probate. Those include transfers that occur automatically at the decedent's death because of designations the decedent made during their life. Non-probate transfers commonly happen with bank accounts, retirement accounts, and life insurance accounts. 

Another type of non-probate transfer is a joint tenancy with the right of survivorship deed, which leaves the co-owner as the sole owner upon the decedent's death.

Second, Georgia allows for a petition for no administration, which is how an heir can request that the court waive probate. This happens in scenarios where their heirs agree on the property's distribution and when the estate has no outstanding debts or bills. If the estate does have unpaid bills or debts, the creditors must agree to the distribution plan to proceed with no administration.

Who is considered next of kin in Georgia?

The person or people considered next of kin varies based on the decedent’s family situation at the time of death. The next of kin is the person or group of people closest to the decedent in the intestacy laws. 

Does the personal representative get paid?

When there is no will, the personal representative can waive compensation or accept payment based on the payment structure set by the probate code. 

Georgia law allows the personal representative to collect 2.5% of the money brought into the estate and 2.5% of all money paid out of the estate. These figures exclude the value of real estate and stocks or bonds unless the executor sells them.

Finally, the personal representative can petition the court for additional compensation to be approved at the court’s discretion.

Expect to Interact with the Court When Someone Dies Without a Will in Georgia

Many people worry that the probate court will interfere with their loved one’s assets or take assets for the state rather than letting the family keep them. Neither of those is the purpose or intention of the probate process and the intestacy laws in Georgia. Instead, they provide a uniform plan for administering an estate when a decedent didn’t leave a will. 

Even simple estates with agreement among heirs must go through the probate court via a petition for no administration. Accordingly, heirs should plan to have at least some interaction with the court. If this is distressing, it’s essential to talk to your loved ones about setting up their estate to avoid probate through trusts and other non-probate transfers.


Sources:
  1. "Georgia Probate Code." Probate Code, Lexis Nexis, 2022 Advance.lexis.com

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