February 17, 2019 in Wills and Power of Attorney
It’s a task that many of us put off because of one reason or another. Maybe you don’t want to talk about it, maybe you think it’s too hard or maybe you are just scared to start the process but when someone dies without a will that person’s “estate” will go through Georgia’s intestacy laws. There have been some very prominent people dying “intestate” lately including the musician, Prince. His massive estate is now in probate in Minnesota, his home state, and a fight is brewing amongst his possible heirs. Very few comprehend what this means or what the laws are in place, but essentially the State of Georgia, through its system of laws, has written a Will for you and you have no control over what’s in it.
Only property that is solely in the decedent’s name will be handled under the intestacy laws. Certain property is considered to be out of probate. This property normally includes things that are owned jointly with someone else or have a designated beneficiary.
Accounts (401k, IRAs, checking and savings, pensions, etc.) that have a POD (payable on death) designation or property that is owned in joint jointly with someone else, go to the surviving owner following the death of the other owner.
Retirement accounts, IRAs or life insurance proceeds, where a beneficiary is named, are also considered out-of-probate and will go directly to the beneficiary and not through the probate court.
The most significant problem that arises when it comes to handling an estate through the laws of intestacy involves who receives what from the deceased’s estate. A large part of who gets what depends on whether the deceased passed leaving a surviving spouse, children or parents.
If you were Married with children:
If you leave a surviving spouse and children, your spouse and your children will have to share your property. In Georgia, the spouse’s portion of the estate can’t be less than 1/3 of your estate.
Married with no children:
If you have died and did not have any children your surviving spouse will receive the entirety of your estate.
Not married but you have children:
If you aren’t married at the time of your death but you have surviving children your children receive equal portions of your estate.
No spouse, No children but surviving parents:
In you aren’t married and don’t have living descendants, but one or both of your parents are still alive, the property goes to your parents.
No spouse, No descendants, No living parents:
If you die with no spouse or living descendants and your parents have predeceased you but DO have living siblings, your brothers and sisters will inherit your estate.
How Is The Amount of The Surviving Spouse’s Share Determined
Georgia’s intestacy laws are formulated to make sure that any spouse you leave behind is taken care of in the event that you die leaving children or grandchildren.
The law makes it clear that, even if you die leaving a significant number of descendants, your surviving husband or wife’s share of your estate can’t be less than 1/3 of the total value of the assets. Whatever is left over is split equally among the children and/or grandchildren.
What Will The Size of The Children/Grandchildren’s Share be?
How much of your estate that your kids will get depends on how many kids you have. All legally recognized children of yours will receive a portion of your estate. Legally recognized children are children born naturally to you and your spouse or adopted by you or your spouse The law does not include step-children.
If one of your children died before you but did leave grandchildren that child’s share is divided equally among their children.
Will the State Get My Property:
While it is extremely unlikely, situations where someone dies with no family do occur on extremely rare occasions.
The law is set up so that in the event that you die without a will and you have no immediate family, your extended family will receive your property. Your extended family would be cousins, aunts and uncles, and others on down the line. The laws exists for the purpose of ensuring that anyone who is related to the deceased receives the property. If absolutely no relative is available, then, and only then, will the state receive the property.
Avoiding costly battles:
Dying intestate happens frequently. It even happens to the most famous and wealthy among us. Developing even a simple will is something that most people don’t want to think about but it can make the grief and stress of losing a loved one much more bearable. If your family knows your wishes it can alleviate the stress of making decisions at one of life’s most trying times. Having a will can also help avoid costly legal battles to determine who gets what. It also allows you to have a sense of peace knowing that your property will be divided up as YOU want it to and only those people that YOU approve will get your stuff. If you want to get the ball rolling on preparing a will give the compassionate and understand attorneys at Harmon and Gorove a call today. We will meet with you and discuss your options and we offer cost effective estate planning options. Let us help you have peace of mind.