A last will and testament, commonly referred to simply as a will, is the most basic element of any estate plan. This document allows you to outline what you would like to happen with your assets when you die, including how you would like them to be distributed and to whom.

When a person dies without a will in Georgia, his or her estate passes through a process known as intestate succession, or probate. The state’s intestate succession laws are found in the Georgia Probate Code, and they determine what will happen to your assets and properties if you do not have a will at the time of your death. This will largely depend on who the surviving parties are, including whether you have a spouse or any children, stepchildren, or grandchildren.

Here, we’ve outlined a few common scenarios we see when a person passes away without a will. Continue reading to learn more or contact our firm to discuss your estate planning options. At Busch, Reed, Jones & Leeper, P.C., we can help you ensure that your loved ones and your wishes are protected.

How Intestate Succession Works in Georgia

Intestate succession depends on whether or not the deceased was married, had any children, or had surviving parents or siblings at the time of his or her death.

How the probate estate is divided and to whom will depend on these factors:

• When There Is a Surviving Spouse but No Children: If the deceased was married but did not have any children when he or she died, the entire probate estate will go to the surviving spouse.
• When There Is a Surviving Spouse and Surviving Children: If the deceased was married and had children, the probate estate will be shared among the surviving spouse and children. The surviving spouse cannot receive less than one-third of the total estate, regardless of how many surviving children exist. Additionally, only “legal” children of the deceased are affected; this includes natural and adopted children but does not include stepchildren.
• When There Are Surviving Children but No Spouse: If the deceased was not married at the time of death but did have children, the surviving children will inherit the entire probate estate. If any surviving children are predeceased, the estate will pass to their children (the deceased’s grandchildren) per stirpes. 
• When There Is No Surviving Spouse or Children: In the event that a person passes away without a surviving spouse or any children/descendants, the probate estate will pass to his or her surviving parent(s). If there is only one surviving parent, he or she will inherit the entire estate.
• When There Is No Surviving Spouse, Children, or Parents: If a person dies without a will in Georgia, and he or she was not married, did not have children, and had no surviving parents at the time of death, the deceased’s estate will pass to his or her surviving siblings. If the deceased’s siblings are predeceased, the estate will pass to their children (the deceased’s nieces/nephews) per stirpes.

The above-outlined scenarios represent the most common situations in which a person’s estate is distributed when he or she passes away without a will. However, in some circumstances, the deceased will not have any surviving spouse, children, parents, or siblings. When this occurs, the next in line to inherit the probate estate are the deceased’s grandparents, followed by his or her aunts/uncles and their descendants, then by his or her first cousins.

When a person dies without a will and he or she is not survived by any family member of descendant, his or her estate will go to the state of Georgia.

What Assets & Properties Are Affected?

Only certain assets and properties are affected by Georgia’s intestate succession laws; others are considered “out-of-probate” assets and are not subject to this process.

Any property that is held solely in the name of the deceased at the time of death is subject to intestate succession. All other properties and assets, including any that were jointly owned by the deceased and another individual/entity or those that have a designated beneficiary, are not affected.

Examples of assets and properties that are not affected by intestate succession in Georgia include: 

• Family homes and other real properties held jointly by the deceased and another party (such as a spouse)
• Bank accounts with “payable on death” (POD) designations
• Shared businesses
• Any account with a designated beneficiary, such as a retirement account, IRA, or life insurance policy

In the event that a person dies without a will but only leaves out-of-probate assets and properties, or if he or she had created a valid living trust, the estate will likely not pass through intestate succession, meaning the deceased’s surviving spouse, descendants, and family members will not receive anything unless otherwise specified. Additionally, surviving family members will not receive any portion of the estate if it is “insolvent,” meaning the deceased’s total debts at the time of death exceeded the total value of his or her estate.

How Can I Make Sure My Family Members Are Protected?

In the most basic of terms, when a person dies without a will in Georgia, the state decides how his or her assets and properties will be divided. The best way to ensure that your estate is distributed according to your wishes is to create a valid last will and testament. This is a key element of a solid estate plan, allowing you to protect your family members, your loved ones, and your legacy.

At Reed Leeper, P.C., we provide comprehensive estate planning services in Marietta. Our professional legal team can help you develop innovative solutions customized to your specific wishes. We are adept at handling all types of complex estate planning matters, from drafting and revising wills and trusts to assisting families in navigating probate.