What Happens to Your Assets in Georgia When You Don’t Leave a Will?

What Happens to Your Assets in Georgia When You Don’t Leave a Will?

georgia estate planning lawyer


You may not need an Atlanta GA estate planning lawyer to make a will (although that isn’t a wise decision), but what if you have no will at all? No one wants to think about their future demise, but death will be coming for all of us eventually. Without a will, what will become of your assets, your liabilities, and who will be the executor? Will any of your loved ones be left out in the cold?

Every state has its own specific set of laws, but by and large the basic rules are the same from state to state. A qualified Georgia estate planning lawyer is the best resource for uncovering what the laws are here.  For someone to inherit intestate, or when there is no will, he or she must be a legal relative. Generally speaking a spouse (or civil partner in some states) inherits it all if there are no children. If there are children, the spouse may receive as little as 1/3 of the estate, and the rest is divided among the children.

The specifics concerning separated spouses, stepchildren, etc. can make things even more complicated, but there is one constant: no one can profit from a death they caused. If there are allegations or proof of abuse or murder, that person may be prohibited from inheriting at all. This makes sense; not only is abuse wrong, but the government wants to make sure that no one is rewarded for murder.

In cases where there are minor children and the other parent is still living, an estate planning lawyer will tell you that what is left behind usually goes solely to the spouse, with the understanding that he or she will use it for the benefit and welfare of him or herself and the children. If there are considerable assets, a will and trust lawyer in Atlanta can then help the surviving spouse to create living trusts for the children.

Sometimes, there is no surviving spouse or children. In these cases, distant relatives may be eligible to inherit some or all of the assets left behind. In no case, however, are friends and people not related to the deceased allowed to inherit. These people can only inherit based on the specifics of a will, and with no will, they have no claim.

Some assets aren’t passed along via a will, and so these items may also have clear beneficiaries listed on the specific documents.

  • Life insurance policy proceeds
  • Real estate, bank accounts, and other property held in joint tenancy or community property
  • IRA funds, or other retirement plans that name a beneficiary
  • Any funds held in a living trust

Perhaps the strangest thing that probate lawyers in Atlanta see is when there are no living family members and no will. When this happens, the assets are given to the state. If you want to make sure that your property is passed along to a friend or charity, be sure to make a will, because otherwise it goes to Uncle Sam.

Estate planning is very important, and your best bet is to hire an estate planning lawyer who has specific knowledge in this area of law. Each state has laws that change when and how people can inherit if you leave your estate intestate. So, do your loved ones a favor and leave a will. This way you can make sure that your estate is divided as you want it to be, without it going back to the government.

Rules of Inheritance in Georgia Probate Cases

Georgia Probate Lawyer

Heirs at Law in Georgia

The following outline is a summary of the Georgia law that determines who are heirs at law of a decedent (the person whose death without a will (intestacy)) requires the administration of his or her estate). The actual statute may be found in the Official Code of Georgia Annotated (OCGA) Section 53-2-1.

The heirs are:

  • 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 you have gotten this far, please consult OCGA sec. 53-2-1(b)(8). You may also need the assistance of a Georgia probate attorney. This information is also available in the form of a flow chart.

SOURCE: Athens-Clarke County.

A gift to help with your New Year’s resolution


If one of your New Year’s resolutions this year includes getting your financial and legal affairs in order should something unexpectedly happen to you, I have a gift I think you’ll enjoy.

To be specific, I just put the finishing touches on a free report I wrote entitled, “What You Don’t Know CAN Hurt Your Family: 5 Easy Ways to Make Sure Your Children, Wishes and Assets Stay Protected Should Something Happen to You”.

In this report you’ll learn 5 easy ways to get your legal and financial affairs in order, just in time for the New Year.  You won’t even need the help of an attorney for some of these important steps; simply follow my instructions in the guide and cross each item off of your “to-do” list as you go.

You’ll also discover:

  • How to legally name guardians for your minor children in a way that will hold up in a court of law
  • The difference between a will and a trust, and which tool you really need to make sure your family, wishes and assets stay protected upon your passing.
  • The details about simple document you can use to give someone legal permission to act on your behalf if you were incapacitated in an accident but did not die (…and without this document, no one will be able to help you under the current HIPPA laws!)
  • How to amass your “entire family wealth” and leave a true legacy to your children (hint: you don’t have to be wealthy and it’s easier than you think!)
  • And so much more!

To grab a copy of this report, simply visit http://bit.ly/gNUxIJ.

I’d also like to encourage you to forward this to any of your family or friends who really need to get their affairs in order just in time for the New Year.  I would especially encourage you to reach out to anyone who has minor children, owns their own home, cares for aging parents or is approaching retirement age themselves.

Again, you can get a copy of this free report now by going to http://bit.ly/dGpJM1. 

All my best,


If You Don’t Have a Will, the State Will Make One for You

If you die before making a will, the "descent and distribution" laws of the state in which you reside become your will. Although descent and distribution laws vary from state to state, they generally result in the surviving spouse’s financial activities being restricted where there are children of the marriage and no efforts being made to save on estate taxes. If you do not have a valid will, these laws may mean the following:

Who Gets Your Money
  • Instead of giving your entire estate to your surviving spouse, the state may give your spouse only a third of your estate, with the other two-thirds going directly to your children.

  • Your spouse may have to make a yearly report of how he or she is managing any money the state grants to your underage children until they come of age.

  • Your spouse may have to post a bond to guarantee that he or she will responsibly manage the money the state grants to your underage children.

  • Your spouse may be asked by your children (when they come of age) to account for all transactions with their money.

  • When your underage children come of age, they may receive all of the money granted to them by the state in a lump sum, even if they’re not ready for that type of responsibility.

Who Cares for Your Children
  • If both you and your spouse die without a will and your children are minors, the state may decide who will be your children’s guardian regardless of your wishes. Your family could end up in court fighting over the kids, or they could end up with a stranger.

Your Spouse’s Future Remarriage
  • If your spouse remarries after your death, his or her new spouse may be entitled to an interest in the assets from your estate.

  • The new spouse will not be legally required to use those assets for the benefit of your children.

  • When the new spouse dies, his or her interest in your estate assets becomes part of his or her estate to deal with in a will or trust as he or she desires. He or she will not be required to leave any of those assets to your children.

Your Children’s Special Needs
  • If any of your children have special needs, or if you give any of your children "advances" against their inheritance, the state will not consider those circumstances in dividing up your estate.

Family Heirlooms

Instead of going to specific family members, your family heirlooms may be divided up, with one-third going to your spouse and two-thirds to your children. If the family cannot agree, the court can have the heirlooms sold and divide the proceeds. The court will not consider any oral promises you made to specific family members about individual items.

  • Your estate will be forced to go through probate, even if you could have avoided it easily with estate planning before your death.

  • If probate and attorney fees pose a financial hardship for your spouse, he or she can only ask the court for an advance against the estate.

Estate Taxes
  • If you do not have an estate plan, you may be liable for the maximum tax to be levied against your estate, leaving less for your family.


Your Will or The State’s Will? Your Choice!

This was circulating on some listservs this week, but thank you to Jennifer Sawday at the California Estate Planning Blog for her post on the topic!

If you die without a Will or a Trust, here’s a great tongue-in-cheek example of what the Will that many states will draw up for you in your stead:

[Remember, this is tongue-in-cheek and not a valid Will by any means. Don’t copy anything!]


(Drawn up for Her by the State)

I, AMY DOE, of _______________________________, declare this to be my will.


1.1    I give to my husband only one-third (1/3) of my possessions, and I give to my children the remaining two thirds (2/3) equally.

1.2    I appoint my husband as guardian of the property of my minor children, but as a safeguard I require that he report to the Probate Court each year and render an accounting of how, why and where he spent the money necessary for the proper care of my children.

1.3    As a further safeguard, I direct my husband to produce to the Probate Court a Performance Bond to guarantee that he exercises proper judgment in the handling, investing and spending of the children’s money.

1.4    As a final safeguard, my children shall have the right to demand and receive a complete accounting from their father of all of his financial actions with their money as soon as they reach legal age.

1.5    When my daughter reaches age eighteen (18), she shall have full rights to withdraw and spend her share of my estate. My son shall have this right as soon as he reaches age eighteen (18). No one shall have any right to question my children’s actions on how they decide to spend their respective shares, after they are received.


2.1    Should my husband remarry and then die intestate, his second wife shall be entitled to one-third (1/3) of everything my former husband owns.

2.2    Should my children need some of this share for their support, the second wife shall not be bound to spend any part of this share on my children’s behalf. The second wife shall have the sole right to decide who is to get her share, even to the exclusion of my children.


3.1    Should my husband predecease me or die while any of my children are minors, I do not wish to exercise my right to nominate the guardian of the person and/or of the property of my children.  Rather than nominating a guardian of my preference, I direct my relatives to get together and select a guardian by mutual agreement.

3.2    If my relatives fail to agree on a guardian, I direct the Probate Court to make the selection.  If the court wishes, it may appoint a stranger acceptable to it who will be entitled to compensation for handling my children’s property.


4.1    Under the existing tax laws, there are certain legitimate avenues open to me to lower death taxes.  Since I prefer to have my money used for governmental purposes rather than for the benefit of my husband and children, I have made no effort to lower death taxes.


5.1    I am leaving it to the discretion of the Probate Court to appoint my
husband my personal representative.  Since I do not care about saving money for my family:

5.1.1    I know that my husband as Personal Representative may have to have, and that my estate may have to pay, a premium on my husband’s Performance Bond as Personal Representative;

5.1.2    I know that my Personal Representative will have to obtain court approval for all sales of estate assets which will increase attorney’s fees and court costs.

5.2    Since I am allowing the State to write my will for me, I accept all changes in the law affecting my estate which are made by statute and court decision at any time prior to my death.

5.3    I hereby forego the opportunity to state a presumption regarding my death in case my spouse and I die simultaneously, preferring the Uniform Simultaneous Death Act to apply.

5.4    I hereby forego the opportunity to require a beneficiary hereunder to survive me for a certain length of time so that if a beneficiary dies shortly after me, there will be a probate both at my death and at the beneficiary’s death.  I do this partly because I know there are a lot of lawyers today and I want to create probate work for them, and partly because I want the state and federal governments to be able to get twice as much in death taxes in a short period of item.

Made by the State for me on this, the date of my death __________________.

Amy Doe
(No Signature Required)