Intestacy in Georgia – Dying without a Last Will and Testament

Preparing for the end of one’s life is something we all know that we should do, however according to AARP, the majority of Americans stop there.  According to the study, which relies on a survey from caring.com, only 4 in 10 American adults have made good on the task and have any type of estate planning document.  As is the case in most states, Georgia residents who die without a will, or intestate, rely on the states distribution scheme to disperse their assets to surviving loved ones.

Many individuals may think that because such a plan exists with the state that they are off the hook, or that their affairs are adequately taken care of.  What may be surprising to residents in Georgia is that the laws governing intestate succession may not be what most of us would logically think would happen.  What’s more, these guidelines don’t necessarily fulfill what the majority of citizens would prefer, especially when it comes to their surviving spouses.

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Before you concern yourself with who will get what if you die without recording a will, you need to know which assets will be affected.  These assets are referred to as probate property, and few know that it doesn’t apply to the entirety of their net worth.  Real property and bank accounts held solely in the name of the deceased individual are considered probate property, but there are many other accounts that are not.

These include things such as life insurance proceeds, funds in IRA’s, 401k’s, co-owned property, and joint bank accounts.  The inheritances of these assets are controlled by beneficiary designations within the account or payable on death clauses among joint owned accounts.  This is important to note because while significant portions of wealth for the average individual is tied to retirement accounts controlled outside of probate, the home is often times just as significant an asset in terms of an individual’s net worth, and it must go through probate in the absence of a trust.

Armed with a working knowledge of which assets the state will ultimately disperse to your loved ones, you can think about how they will divide these assets up.  Because all families will vary to the extent of living relatives such as spouses, children, parents, and siblings, there exists a table that determines the degree of relation called the Table of Consanguinity.

This table effectively rates the order in which your assets will be dispersed.  It goes all the way to third cousins if no heirs can be found, but the general order in which relatives will inherit is: spouse, children, parents, siblings, and then grandparents.  The first in line takes to the exclusion of all others, meaning that if there are living children, they inherit all assets before the parents get a penny.  In most states, all assets go directly to the spouse first.  In Georgia this is also true if the deceased has no children, but deviations occur from here.  Below lays out a few of the more common scenarios with how intestate assets are distributed in Georgia.

  • Survived by a spouse with no children – all assets are inherited by the surviving spouse.
  • Survived by children with no spouse – all children inherit equal shares, per stirpes, of the assets.
  • Survived by a spouse AND children – Spouse and children inherit equally as if the spouse was one of the deceased children. There exists a qualifier here that the surviving spouse will receive no less than one third of the estate.  This means that up to two children, the spouse and children receive the same share, but if three children exist, their share is reduced to the extent that the surviving spouse takes a one third share.
  • Not survived by a spouse OR children – If there exist no living spouse or children at the time of death, all decedents assets go to grandchildren in the shares that their parents would have inherited. If no grandchildren exist, then the decedent’s parents inherit the assets.  Should the parent’s also be deceased, then any siblings would take in equal shares.

While the Table of Consanguinity and the per stirpes scheme of distribution seem logical, the hang-up for many is the distribution given to a surviving spouse with children.  Many hope to give all assets to their surviving spouse in the hopes that those same assets go to the children after the spouse’s death.  This is to ensure that he/she was provided for during the rest of their lifetime.  If you are a resident of Georgia and this distribution scheme is something that you wish to avoid, you absolutely MUST execute a will or the state scheme will control the transfer of your assets.

If you have questions regarding a Last Will and Testament or what probate instrument is right for you, let us help!  Thrift & McLemore’s attorneys have assisted numerous Georgians develop estate plans specific to their goals.   Contact Thrift & McLemore by email at [email protected] or by phone at 678-671-4031 to discuss how we can help you and your family set your affairs in order today.

Georgia Year’s Support: An Essential Component to Comprehensive Estate Planning

By Kent C. Bailey, Esq., Thrift & McLemore, LLC, September 2, 2018

The death of a loved one is a time of extreme mourning and anguish for surviving family members.  In addition to the grieving process many may worry how they will move forward financially, especially if the deceased was the breadwinner of the family.  While many families are familiar with the need for a will to add financial security in these times, an almost forgotten provision in Georgia Probate Code is often neglected as a tool to care for these loved ones: Year’s Support.

What is Year’s Support? 

Georgia Code Title 53, Chapter 3 – Year’s Support is, despite its name a permanent award to a surviving spouse, minor children, or both.  It is a right to inherit property for these individuals, regardless of what may have been communicated via will, the absence of a will, or the relative position of the majority of creditors.  The beneficiary is generally entitled to receive an amount equaling satisfactory support and maintenance for a period of 12 months for a standard of living that the individual is accustomed to.  This right is not absolute; for if a spouse remarries or dies before filing, or if a minor child reaches the age of majority before filing, this right is lost.  To successfully secure a year’s support claim, a petitioner must file in the probate court in the county of the deceased within two years.  This claim can be challenged by other beneficiaries of the will, and the award will ultimately depend on the court’s discretion.

In Laymen’s Terms

Year’s Support is in actuality an antiquated law that has been on the books in Georgia for decades, dating back to a time when males were the primary provider and females were the primary caregivers within households.  While it holds a dated application in modern society, it is nonetheless an active law that can be very effective for families depending on the situation.  In a nutshell, it is a way to ensure that families of deceased individuals are not left out in the cold due to the decedent’s neglect in creating an effective estate plan, or due to changes in the decedent’s financial situation since the creation of an estate plan.  A properly petitioned Year’s Support claim places spouses and minor children squarely in the front of the line when it comes to divvying up deceased individuals assets, ensuring the family is fed before most creditors or distant money hungry relatives.

Applying Year’s Support Strategically

By terms of a properly executed will in Georgia, an individual would most often have a surviving spouse elect between the right of seeking an award of Year’s Support, or taking the property under the will as it exists.  For decedents facing significant debt at the end of life or blended families, this offers significant flexibility with regards to the estate.

Year’s Support is especially beneficial for families of deceased individuals with high levels of debt relative to assets.  Be it end of life care or some other reason, often times creditors can take the lion-share of an estate leaving surviving family members to fend for themselves.  A Year’s Support election pushes these family members to the front of the line at the expense of said creditors.  This does not include mortgage debt, but does extinguish personal debt such as credit cards, student loans, etc.

Blended families are another area where Year’s Support enjoys high participation.  If a decedent does a poor job of leaving assets to minor children in the event of remarriage, or leaves the very home that a second spouse lives in to his minor children, Year’s Support offers recourse for the aggrieved parties.  While many blended families are able to get along cordially, Year’s Support can be the last bastion of support for others engaged in a nasty probate battle.

Once properly filed, courts generally condone the award of Year’s Support unless an objection is filed by a separate party with an interest in the estate.  If an objection is filed, it is necessary to retain an attorney, as proper accounting of the estate and procedural actions apply.  The likelihood of a successful challenge depends on a number of factors, and is an intensely fact specific inquiry.

Also worth mentioning is that an award of Year’s Support only applies to probate assets.  This means that retirement accounts such as 401k’s, IRA’s, and life insurance policies are exempt unless there is no designated beneficiary.  Similarly, accounts designated as Joint Tenants with Right of Survivorship (JTWRS) become sole property of the surviving individual upon death of the decedent, exempting themselves from reach of probate.

How Can We Help?

Before electing or petitioning for Year’s Support in Georgia, it is worth reviewing the complete fact set with a skilled attorney.  For a self- help guide on Year’s Support in Georgia, click here.  If you have any questions about Year’s Support, or any other aspect of Estate Planning in Georgia, the qualified attorney’s at Thrift & McLemore are here to help.  You can reach Thrift & McLemore by email at [email protected] or by phone at 678-671-4031 to discuss how we can assist you in creating an estate plan that works for you today.

Please visit us on the web at www.thriftlegal.com.

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