When an individual dies, their heirs inherit their property and assets (in other words, their estate). In the state of Georgia, it can take anywhere between a year or eighteen months to settle an estate in probate court. Objections to the will can cost tens of thousands of dollars. To avoid uncertainty, the court must be clear on the decedent’s wishes for their estate.
It is important to have a valid will to help protect your loved ones and ensure your final wishes are enacted. In the state of Georgia, a valid will must be made in writing while the testator (the person making the will) is of sound mind. Additionally, the will must be signed by the testator and two witnesses. However, if the decedent (deceased individual) does not leave a valid will or the will is contested by the decedent’s family, the following Georgia inheritance laws will dictate how the estate will be divided.
Does Georgia Have an Inheritance or Estate Tax?
Since July 1, 2014, Georgia has had no inheritance or estate tax on inherited estates. However, inheritors must file their loved ones’ final income tax returns by the soonest tax day, a federal estate income tax return by the tax day the following year, and a federal estate tax nine months following the death (if the estate is valued at $11.7 million or more). Some forms of inherited property may be taxed. For example, beneficiaries or heirs are sometimes required to pay income taxes on some inherited retirement accounts.
Dying With a Will in Georgia
If an individual dies leaving a will, it must first be determined whether or not the will is valid. In order to be considered a valid will in the state of Georgia, the will must have been signed by the decedent and two witnesses familiar with the property included in the will. In the will, all executors of the estate should be clearly identified. To function as an executor of an estate, a judge must approve the decedent’s choice of executor prior to their passing.
Once the decedent has passed, the executor of the estate becomes responsible for dispersing the estate’s property to any listed beneficiaries. Additionally, the executor will become liable for any remaining debts associated with the estate. It is important to choose your executor carefully as they will be responsible for enacting your last wishes regarding your estate, including portioning out your assets and property to various beneficiaries.
What Happens if You Die Without a Will in Georgia?
Unfortunately, the inheritance process can be complicated if the decedent does not leave behind a valid will. Without a will, the probate court has no way of knowing your specific wishes regarding the inheritance of your property and assets. Dying without a will is also known as dying in “intestacy.” If you have not written a will before passing, the following intestate succession laws will be used to determine the heirs of your estate.
Intestate Succession in Georgia
To die without a will in Georgia means your assets will be assigned according to “intestate succession.” If an individual dies and does not leave a will clearly stating their intentions for the estate, inheritance of the estate will automatically be given to their closest living family member. The ordering of intestate succession is as follows:
If the decedent leaves behind a spouse and no children, the spouse will receive the entire inheritance.
The decedent leaves behind children and no spouse, the children will inherit equal shares of the estate.
If the decedent had children who are now deceased, inheritance of the estate would fall to their descendants (i.e., the decedent’s grandchildren).
If there are no living descendants, inheritance of the estate will go to the decedent’s parents.
If there are no living parents, inheritance of the estate will go to the decedent’s brothers or sisters.
If there are no living siblings, the children of the decedent's siblings (i.e., nieces and nephews) will inherit the estate.
If there are no living nieces or nephews, the decedent’s aunts, uncles, or cousins may be eligible to make a claim for the inheritance
In rare cases, a decedent may leave no heirs or beneficiaries. In those cases, the state of Georgia has a somewhat complicated formula for finding a distant relative to inherit the estate.
Community Property in Georgia Inheritance Law
States with community property inheritance laws require that shared assets between spouses are split into equal ownership. However, Georgia does not recognize community property laws but operates by equitable distribution laws. This means that the ownership of assets acquired during the marriage may not be evenly split. Instead, factors such as the contribution made by each spouse towards acquiring or maintaining the assets will be considered. Decedents have the right to determine who will inherit their share of their marital (or “common”) assets but will be unable to dictate the terms of their spouse’s share.
Separate Property in Georgia Inheritance Law
Separate assets are assets acquired before marriage. In Georgia, spouses do not automatically gain ownership of their spouse’s separate assets upon marriage. Therefore, their spouse is free to choose who will inherit their separate assets. In many cases, this may be their spouse, but it is the decedent’s right to decide who will inherit their separate property.
Spousal Rights According to Georgia Inheritance Law
The question of spousal inheritance depends on a will's presence. If an individual dies intestate, state code guarantees the surviving spouse will receive at least one-third of the total estate. If the decedent had children, the estate would be divided as follows:
If the decedent had one child, the child would split the estate with the decedent’s spouse.
If the decedent has two children, each child and the surviving spouse will inherit a third of the total estate.
If the decedent has three or more children, the surviving spouse will inherit a third of the total estate, and the children will split the remaining two-thirds equally.
If an individual leaves a will, they can be as generous to their spouse as they wish. However, Georgia is the only state in the country that allows descendants to disinherit their current spouse. This means that a decedent can choose to leave their spouse with little to no share in the estate. In these cases, the state may allow the spouse of the deceased to claim benefits from the state for up to a year. Additionally, if the will was made while the decedent was married, but they have since divorced their spouse, their spouse’s requests for benefits or inheritance of the estate are considered invalid.
Children’s Rights to Inheritance According to Georgia Law
According to Georgia intestate law, children of the deceased will inherit equal shares of the assets (unless their parent or the deceased’s spouse is still living, see above). In most cases, it is immediately obvious who is considered a legal child of the deceased. However, the following situations may complicate the question of who qualifies as a “legal child.”
In order for illegitimate children to inherit a portion of the estate, the deceased must have acknowledged the child in writing, or the court must receive compelling evidence of the decedent’s maternity or paternity. In other words, illegitimate children have the same rights as children born inside of marriage as long as there is clear and compelling evidence to prove their claim.
Children formally adopted by the deceased are considered legal children and have the same right of inheritance as biological children. Children who are not formally adopted, such as those in foster care under a deceased parent, are not entitled to any share of the estate.
Children Placed For Adoption
If a child was placed for adoption by the deceased and then adopted by another family, they would not be considered heirs of the estate.
Stepchildren will not receive a share of the estate unless they are legally adopted by the deceased.
These are the children’s rights to inheritance according to the laws of intestacy in Georgia. However, this assumes the deceased did not leave behind a valid will. If you do not wish for your children to inherit any portion of your estate, you will need to clearly state your wishes in your will. Additionally, if you want to include children who are not your “legal children” (i.e., stepchildren, foster children, or nieces/nephews you have raised), you must specify who these parties are and the precise share of the estate they are to inherit.
Single and Childless in Georgia Inheritance Law
If you do not have a spouse or children, you may choose to allow your heirs to be decided by intestate succession (i.e., pass your estate on to your nearest close relative) or make specific arrangements for your assets in a valid will. If you have questions about the ordering of heirs according to Georgia’s intestacy laws, refer to the Official Code of Georgia Section 53-2-1.
Non-Probate Georgia Inheritances
Non-probate properties or assets are exempt from the probate process. This means that these assets are bequeathed directly to a beneficiary rather than becoming absorbed in the larger (probate) estate. Examples of non-probate assets include life insurance policies or 401(k)s with designated beneficiaries.
Unique Situations in Georgia Inheritance Law
In most cases, determining the heirs to an estate is a straightforward process. However, the following factors may create unique situations that will require the review of a qualified probate attorney.
If there is suspected abuse of power of attorney in creating a will, the will is likely to be contested. This can be a complicated situation as, in most cases, an individual will likely appoint the same person they have named in the power of attorney to act as executor of their estate.
If the estate has associated debts, the decedent’s creditors are entitled to a portion of the proceeds from the estate. This could mean that the decedent’s heirs have been forced to relinquish or sell the properties or assets they have inherited in order to pay off the estate’s debt.
If the decedent has left behind a business, the division of this asset will depend on if the business is a sole proprietorship or corporation. If the business is a sole proprietorship, it cannot exist without its owner and is considered the sole asset of the deceased. An incorporated business, however, will still function even after the passing of the deceased. While ownership of an incorporated business usually passes to a family member, cases involving the inheritance of a business can be complicated and will likely require the advice of a qualified attorney.
How Long Do You Have to Contest a Will in Georgia
The timeline for contesting a will depends on if the will is admitted to probate in common or solemn form. Because solemn form probate requires that all potential heirs are notified and given a copy of the will, individuals have only ten days after being served to object to the content of the will. On the other hand, common form probate requires no official notice to potential heirs, so Georgia law allows potential heirs up to four years from the date the will is admitted to probate to contest the will.
There are some exceptions to these hard deadlines. For example, if you are a minor at the time a will is probated, Georgia law allows you to contest the will up to four years after the day you turn 18. Regardless of your situation, a qualified legal professional can advise you of your rights if you believe you have valid reasons for contesting a will.
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