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Atlanta Probate Attorney: Guess Who Gets Assets When There Is No Will

As an Atlanta probate lawyer, I am always representing clients who must administer an estate without a Will.  In Georgia, when a person dies without a Will (i.e., dies intestate), the state legislature has decided how her estate will be divided.  The legislature passed a statute that identifies the heirs-at-law of an intestate decedent and the amount each heir-at-law is entitled to.  The following persons are entitled to a share of the intestate decedent’s estate in the following shares:

  1. If the decedent was married without children: entire estate to spouse.
  2. If the decedent was married with children: estate divided evenly among spouse and children*, except that spouse receives no less than 1/3.  To illustrate, if the decedent was married and had one child, the spouse and child each would receive 1/2 of the estate, but if the decedent was married and had three children, the spouse would receive 1/3 of the estate, and the three children would split the remaining 2/3 of the estate.
  3. If the decedent had children but was not married (was either single, divorced, or widowed): estate divided equally among children.
  4. If the decedent was not married and had no children: estate divided among living parents.
  5. If the decedent was not married, had no children, and had no living parents: estate divided among siblings.

If the decedent died without any siblings, then more distant relatives to the decedent may be the heirs-at-law.  Also, if a person would have been an heir-at-law had he survived the decedent, any descendants of that person would be deemed heirs-at-law and entitled to his share of the estate.  If no heirs-at-law can be found, the decedent’s estate becomes property of the State and is distributed to the board of education in the county where the decedent resided.  This occurrence is called escheat.

Many people are surprised when they discover that a spouse of a decedent does not get 100% of the decedent’s estate if the decedent also has children (in some states, the spouse does take the entire estate where the spouse’s only children are those with the decedent).  They often report the decedent assumed a different distribution scheme than the law provides, saying something like, “I don’t need a Will.  My wife will get everything when I die anyway.”

In addition to the problems that may arise due to intestacy, an administrator of an intestate estate is more likely to be subject to various reporting and bond obligations that can turn a relatively quick probate process in a weeks-long, drawn out mess, especially given the level of competency of many probate courts in processing petitions for administration and the lack of cooperation from heirs-at-law who are either estranged from the family or hostile to other heirs-at-law.

A well-drafted Last Will and Testament can avoid all of the problems unique to an intestate estate, including distribution and reporting matters.  A person in the Atlanta area looking for a Will should find a competent Atlanta estate planning lawyer to help prepare a Will, as well as increasingly important accompanying documents such as a financial power of attorney and a Georgia Advanced Directive for Healthcare.  With these documents in place, she can have peace of mind knowing that her estate will go where she wants it to and will be a much easier task for her executor, and that her beneficiaries will not have to wait long to receive their inheritance.  If you need an estate plan, or if you have questions about probate or estate administration, please email me or call me at my Atlanta probate law firm at 404-467-8613.  I look forward to helping you.

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100 Colony Square, Suite 1450

Atlanta, GA 30361

Phone: 404-445-7771
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