Intestate Guide | My Loved One Died Without a Will. Now What?

Mar 24, 2020 | Intestate

Losing a loved one can be devastating. What can make it more challenging is when a loved one dies unprepared. While a will ensures that assets will be divvied according to the deceased person’s wishes, what happens when there is no will? Who is responsible for their estate? Will you have to go to court? What is the order of inheritance in Georgia? The intestate process can become stressful during a time of grieving, so it’s important to take time for yourself as needed. 

The term “intestate” refers to a person or estate without a valid, legal, will in place. Learning how intestate estates are handled can make things less stressful on you if a loved one dies without a will in place. You’ll know what to expect, and there will likely be less surprises along the way. If you’re a family member or close friend of someone who has passed without a will, and you don’t know where to start, we’ve gathered some key points to help guide you throughout the process.

Where Do I Start When a Loved One Dies Without a Will?

When you lose a loved one without a will, your first step is to obtain a Certificate of Death from your local Vital Statistics Office or possibly even the funeral home. It’s best to order several copies upfront because you may need to submit them to various agencies. Some may only accept original certificates, meaning copies may not be accepted. 

Next, find your local probate court to inquire about what forms you’ll need to begin the probate process. If you don’t understand the process, or if it becomes overwhelming, you may want to consider hiring an attorney. 

How Does the Probate Process Work in Georgia?

The probate process exists to protect the estate from fraud and to ensure the estate is transferred to the heirs, if any exist. In most cases, you will need to probate the estate, however there are some exceptions. We suggest you consult an attorney to determine if you need to probate the estate. 

Once the Petition for Probate is filed, the Court will designate an Executor  or Personal Representative and issue Letters Testamentary  or Letters of Administration stating this. State law typically provides a list of those who could serve as the personal representative for the estate. In Georgia, the courts usually designate a surviving spouse or an adult child as the Executor. 

The Executor is granted authority to manage the estate’s affairs, including locating heirs, contacting financial institutions, collecting and distributing assets, and paying bills, among many other responsibilities. If you are named the Executor of the estate, you can find a step-by-step guide here.

Once the Letters Testamentary are issued, the Executor must choose between two probate options: solemn form and common form. Solemn form requires the executor to give notice to all potential heirs. The decision is binding when the case is closed. Common form probate doesn’t require a hearing or notice to all interested parties. However, the decision on how to distribute assets isn’t binding for up to four years. This gives other parties time to dispute the decision.

The Executor will also be required to perform the following during the probate process:

  1. Publish a notice of death in a newspaper where the decedent lived within 60 days. Creditors have three months to make a claim.
  2. Gather and file an inventory of all assets within 90 days, if requested by the court.
  3. File a petition to close the probate, a “Petition to Discharge,” after all debts and taxes are paid. 

Once all these steps are completed, the Court will issue an Order to distribute the estate’s assets among the beneficiaries. At this point, you’ll probably consider putting the property up for sale if you have multiple heirs. You can sell a home going the traditional route with a realtor. But know that there are less traditional routes to getting the house sold quickly without having to pay realtor commissions.

What Assets Are Distributed Through Probate? Which are NOT?

Assets Distributed Through Probate Assets That Do NOT Go Through Probate
  • Any assets only in the deceased person’s name, meaning that they were the sole owner. (real estate, cars, jewelry, fine art, collections, etc.)
  • A share of property owned as “tenants in common”
  • 401K
  • Life Insurance
  • IRA
  • Property in Living Trust
  • Bank Accounts
  • Pension Plans
  • Property Owned in Joint Tenancy (Vehicles, Real Estate, Business Assets)

Intestate Succession in Georgia: Who Gets What When There is No Will?

Who is first in line to inherit the deceased’s assets? The order of by which beneficiaries receive assets from an estate without a will, otherwise known as intestate succession, varies from state to state. In Georgia, the Georgia Probate Court dictates the following:

First to Inherit:  A surviving spouse with no children by the deceased 

If your loved one has a surviving spouse and no children, he or she will get the entire estate. 

Second to Inherit: A surviving spouse with children

If your loved one has a surviving spouse and direct offspring, the estate will be split equally among them, so long as the spouse receives no less than one third of the estate. Adopted children and children born within ten months of death are also included in the distribution of assets. Adopted children are considered the same as biological children according to Georgia inheritance law. If stepchildren are not named as heirs in a legal will, they will not be included in the inheritance unless they were adopted by the descendant at some point in time.

If there is no living spouse, the assets are divided equally among the children. 

Intestate cases without a surviving spouse or children are the most complicated in Georgia. If a spouse or children do not exist, the succession plan is as follows:

Third to Inherit: Grandchildren and great grandchildren

If there is no surviving spouse or living children, the next of kin is grandchildren and great grandchildren of the deceased. Also, if an estate owner’s child passes away before the estate owner, then their share gets passed on to their children (if any) and distributed equally.

Fourth to Inherit: Parents of the Deceased

When there are no living grandchildren or great grandchildren, then assets will be equally divided between the deceased’s parents. If there is only one surviving parent, then that parent will inherit the entire estate. Adoptive parents also gain the right to inherit from their adopted children. A stepparent does not have the same inheritance rights as a biological or adoptive parent, unless he or she became the adoptive parent to the decedent at some point in time.

Fifth to Inherit: Siblings and Half Siblings of the Deceased

If the deceased parents are no longer living at the time of death, the assets are split equally amongst siblings, including half siblings. Half siblings are treated the same as “whole” siblings. In other words, a brother from the same father, but not the same mother (or vice versa), would get the same share as a sibling who shared both parents with the deceased.

Sixth to Inherit: Nieces and nephews, grandparents, aunts, uncles and cousins in that order:

If there are no living siblings, the inheritance will move on to extended family in this order:

  1. Nieces and nephew’s of the deceased
  2. Maternal and paternal grandparents
  3. Maternal and paternal aunts and uncles
  4. Maternal and paternal cousins

It’s important to note that inheritance will not be withheld from relatives that are non-US citizens, or those living in the US illegally. What if next of kin doesn’t live in the US?

Can Close Friends Become Possible Heirs to an Estate?

Friends are not listed as possible heirs in Georgia’s intestate succession laws.The only way a friend, or anyone unrelated to the deceased, can claim part or all of their estate is if they are:

  1. Listed as an heir on a legal, valid will of the deceased.
  2. Named as a beneficiary on an account i.e. life insurance, retirement, or bank accounts
  3. A co-owner of a joint bank account with Right of Survivorship.

What if There are No Surviving Heirs?

When there are no surviving heirs to an estate in Georgia, the assets typically escheat to the State of Georgia. In other words, unclaimed assets from an estate in Georgia become the state’s property. Per Georgia law, unclaimed property will be transferred to the board of education in the county where the estate’s probate proceeding was filed. Before this happens, the executor is expected to file a petition in probate court requesting a 60-day window to allow any heirs to come forward. This is a final attempt before the estate is transferred. 

Key Takeaways When Dealing With an Intestate Estate

The probate process will vary on a case-by-case basis. No doubt, it can be a lengthy and tedious process, but it is also the very thing that protects your loved one’s estate and keeps the process fair. One of the biggest takeaways, however, is making sure you take things day-by-day,  step-by-step. While taking care of your loved one’s assets is important, taking time for yourself and family will be critical during this process.