The Georgia Will You Didn’t Write: Understanding Basic Distribution Rules

In Georgia, if you die (“decedent”) without a Will (an “Intestacy”), then the state has a hierarchy of inheritance. It is based upon relationship to the decedent. Estate administration in Georgia without a will may not distribute your estate in the way you would prefer.

Georgia’s Basic Distribution Rules: Who Inherits When There is No Will?

If the person dies with a spouse, but no children, then the surviving spouse inherits all.  In a situation where the decedent is survived by a spouse and children, then the spouse and children share equally, but the spouse cannot receive less than 1/3.  If there is no surviving spouse or children, the next in the order of inheritance are the decedent’s parents, then siblings and descendants of deceased siblings descendants, then grandparents, then uncles and aunts and their descendants.

If no one is found in those categories, there is a process of determining more remote relatives. This involves counting the number of steps in the chain from the relative to the closest common ancestors of the relative and decedent and the number of steps in the chain from the common ancestor to the decedent.  The sum of the steps in the two chains determine the degree of kinship. The surviving relation with the lowest sum inherit the estate.

Protecting Minors: The Impact of Intestacy on Children’s Inheritance

Minors cannot legally own or manage property; so, a child’s inheritance cannot be distributed to the child directly.  In instances where there is no Will and a child inherits property the probate court will appoint a conservator (a financial guardian). The conservator manages each share of a minor child until such child reaches age 18.  This process involves oversight by the probate court and involves annual accountings and restrictions on how the funds may be used and how the funds may be invested.

Conservators will be limited to investments in Georgia State and Municipal bonds, United States bonds and interest-bearing deposits in State or National banks, trust companies and loan associations that are insured by the Federal Deposit Insurance Corporation.  Other investments can be made only with specific approval from the probate court.  Distributions for the benefit of the child must receive court approval. At 18, the child is entitled to receive all funds held in the guardianship with no restrictions or further oversight.  The probate court will also require the guardian to be bonded. This will entail an annual fee based upon the size of the assets managed.

The surviving spouse is deemed to be the guardian of that spouse’s minor children unless parental rights have been terminated.  If there is no surviving spouse, then the guardian is appointed by the probate court based upon the court’s assessment of whom is best to serve. When considering how estate administration in Georgia without a will affects minors, it’s crucial to understand these protections.

Estate Administration in Georgia: Burdensome Requirements

The probate court in the county where the decedent resides or is domiciled at the time of death determines who will serve as the administrator of the estate.  There is a hierarchy of candidates for the probate judge to consider for appointment as administrator to manage the estate.  The surviving spouse has priority in the order of those who may serve.  Administrators are required to be bonded, restricted to the “legal list” of investments and required to furnish an initial inventory of the estate and file annual returns with the court.  These requirements may be waived upon proper application to the court.  Most Wills in Georgia waive these reporting and bonding requirements for executors and grant broad authority as to investments.

Practical Costs: Why Court Supervision is Often Expensive

Court supervised conservatorships for minor children are often burdensome and expensive.  Court supervision of estate administrators can similarly be overly burdensome and expensive.  In a Will, distributions to or for a spouse and children or heirs generally may be tailored to meet the situation at hand and to achieve the needs of the family, avoid taxes and protect assets from creditors. Wills and Trusts provide clarity as to the decedent’s wishes. They also reduce costs and avoid the necessity of intervention and supervision by the court.

Choosing Clarity: How Wills and Trusts Provide Protection and Reduce Costs

For a decedent dying in Georgia, there is a plan for distributing and administering the estate under Georgia’s intestacy laws.  In effect, the State of Georgia does have a Will for you. However, it may not be the one you want or one that is appropriate to your situation. We are privileged to have choices in this regard.  If you choose to make no choices, the State will choose for you. The results will have lasting consequences which may negatively impact those about whom you care and the organizations that you may wish to support, such as your church. If you would like to learn how you can include your church in your will, please contact us today.

Laurin McSwain

Laurin M. McSwain (he/him) is a principal of Lefkoff, Duncan, Grimes, McSwain, Hass & Hanley, P.C. Laurin concentrates his practice in estate planning, probate, and estate administration. He is a member at the Cathedral of St. Philip and currently serves on the boards of the Alliance Of Christian Media/ Day 1, Friends of Cathedral Music, the Georgia Community Trust of BDI and the Advisory Board of the Schenck School. Learn more about the ECF Board of Directors.