What happens if you die without a will? Learn about intestacy in Georgia.
If you die without a will in Georgia, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in Georgia.
Which Assets Pass by Intestate Succession
Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:
- property you've transferred to a living trust
- life insurance proceeds with a named beneficiary
- funds in an IRA, 401(k), or other retirement account with a named beneficiary
- securities held in a transfer-on-death account
- real estate for which you have a transfer on death deed
- vehicles for which you have a transfer on death registration
- payable-on-death bank accounts, or
- property you own with someone else in joint tenancy or tenancy by the entirety.
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Georgia.
Who Gets What in Georgia?
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:
|
If you die with: |
here's what happens: |
| children but no spouse | children inherit everything |
| spouse but no descendants | spouse inherits everything |
| spouse and descendants | spouse and descendants equally share the intestate property, but the spouse's share may not be less than 1/3 |
| parents but no spouse or descendants | parents inherit everything |
| siblings but no spouse, descendants, or parents | siblings inherit everything |
The Spouse's Share in Georgia
In Georgia, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants -- children, grandchildren, or great-grandchildren. If you don't, then your spouse inherits all of your intestate property. If you do, they and your spouse will share your intestate property equally, except that your spouse's share cannot be less than 1/3.
Example: Bill is married to Karen, and they have three grown children. Bill and Karen own a house in joint tenancy, and Karen is also the named beneficiary of Bill's retirement account. When Bill dies, Karen automatically inherits the house and any remaining retirement funds; those things are not intestate property. Bill also owns $300,000 worth of other property that would have passed under a will, so Karen inherits 1/3 -- that is, $100,000 worth -- of that property . The three children split the remaining $200,000 worth of Bill's intestate property.
Children's Shares in Georgia
If you die without a will in Georgia, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have and whether or not you are married. (See the table above.)
For children to inherit from you under the laws of intestacy, Georgia must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.
- Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. Ga. Code Ann. § 53-1-8.
- Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
- Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won't affect their intestate inheritance. Ga. Code Ann. § 53-1-8.
- Posthumous children. Children conceived by you but not born before your death will receive a share, provided they were born within ten months of your death and survived at least 120 hours after birth. Ga. Code Ann. § 53-2-1.
- Children conceived by artificial insemination. A child conceived by artificial insemination and presumed legitimate will receive a share of your estate. The child is presumed legitimate if born during marriage or within the usual period of gestation after a marriage, if both spouses have consented in writing to the artificial insemination procedure. Ga. Code Ann. § 53-2-5.
- Children born outside of marriage. If you were not married to your children's mother when she gave birth to them, they will receive a share of your estate if (1) a court establishes your paternity, (2) you have acknowledged your paternity in writing, (3) you signed the children's birth certificates, or (4) there is other clear and convincing evidence of your paternity. Ga. Code Ann. § 53-2-3.
- Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share. Ga. Code Ann. § 53-2-1.
If you want to read the law, Georgia Code § § 53-2-1 to 53-2-5 cover parent-child relationships. You can search the code from the website of the Georgia General Assembly.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.
Will the State Get Your Property?
If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, or cousins.
Other Georgia Intestate Succession Rules
Here are a few other things to know about Georgia's intestacy laws.
- Half-relatives. "Half" relatives inherit as if they were "whole." That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common. Ga. Code Ann. § 53-2-1.
- Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive.
- Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.
- Slayer rule. Someone who "feloniously and intentionally" kills you will not receive a share of your property. Ga. Code Ann. § 53-1-5.
- Spouse's death within six months. If your spouse dies without a will within six months of your death, your property will pass to your spouse's heirs as though he or she predeceased you. Ga. Code Ann. § 53-2-8.
- Advancement. If you make a lifetime gift to a relative, this amount is deducted from your relative's share only if you wrote this down within 30 days of the transfer or the relative admits this in writing. Ga. Code Ann. § 53-1-10.
Learn More
To learn more about intestate succession, read How an Estate Is Settled If There's No Will.
You can find Georgia's intestate succession laws in Sections 53-2-1 to 53-2-8 of the Georgia Code. If you want to read the law, you can search the Georgia Code from the website of the Georgia General Assembly.
For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.
