Do I Need a Will?
In Georgia, if you pass away without a will, your estate passes to your closest heirs at law. Passing away with no will is also known as leaving an intestate estate. When this happens, Georgia law sets out who inherits your property.
Spouse’s Rights Under Intestacy Law in Georgia
If you are married, and leave no children or other living descendants, then your spouse will inherit your entire estate. If you are also survived by any child, or other living lineal descendant, the spouse shall share equally with the children, with the descendants of any deceased child taking that child’s share, per stirpes; provided, however, that the spouse’s portion shall not be less than a one-third share.
For example if, at the time of your death, you leave behind a spouse (Mary), and one child (Billy), then your spouse and child will each inherit 50% of your estate.
Example 2: For a more detailed example, assume you leave behind your spouse (Mary), and two living children (Billy and Susie), and one deceased child (Bobby) who left a child of his own (Johnny – your grandson), then your estate would pass like this: Spouse (Mary) would receive 1/3 of your estate; Billy, Susie and Johnny (your grandchild) would then equally divide the remaining 2/3’s of your estate.
Estates Without Spouses
If you pass away and are not survived by a spouse, your heirs will be those relatives who are related to you by the nearest degree in which there is a survivor;
- Children are in the first degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased child taking, per stirpes, the share that child would have taken if in life;
- Parents of the decedent are in the second degree, and those who survive the decedent shall share the estate equally;
- Siblings of the decedent are in the third degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased sibling taking, per stirpes, the share that sibling would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no sibling survives the decedent, the nieces and nephews who survive the decedent shall take the estate in equal shares, with the descendants of any deceased niece or nephew taking, per stirpes, the share that niece or nephew would have taken if in life;
- Grandparents of the decedent are in the fourth degree, and those who survive the decedent shall share the estate equally;
- Uncles and aunts of the decedent are in the fifth degree, and those who survive the decedent shall share the estate equally, with the children of any deceased uncle or aunt taking, per stirpes, the share that uncle or aunt would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no uncle or aunt of the decedent survives the decedent, the first cousins who survive the decedent shall share the estate equally; and
- The more remote degrees of kinship shall be determined by counting the number of steps in the chain from the relative to the closest common ancestor 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 shall be the degree of kinship, and the surviving relatives with the lowest sum shall be in the nearest degree and shall share the estate equally.
Why Have a Will?
If the law takes care of where my stuff goes, then why do I need a will? Well, maybe you don’t want the State controlling your stuff, or perhaps you would prefer to leave your property to other people, or in different amounts. One of the major reasons people should consider making a will is if they have minor children.
Think About Using a Trust
When you have minor children, their share of your estate will be under the control of their guardian or conservator and you will almost certainly have no say-so in who that person or entity will be. If you leave your children’s share in trust, however, you can control almost all aspects of what happens. You can pick the trustee, you can explain how much money can be used by the trustee, and for what purposes, and you can decide when the property should pass to your children outright and free of trust, which may not be until after they have finished school and gotten a job (for example).
Trusts are also great tools for insuring you leave resources behind for any special needs children you may have. One of the largest fears for parents with special needs children is what will happen to these children after the parents are gone. Establishing a trust can help alleviate this concern somewhat.
What About Guardians for Minor Children?
You can also use your will to express your desire as to who you want to take over the care of any of your minor children should you no longer be here. Would you rather people guess about who they think you would want raising your children, or would you prefer to ensure that such an important decision is set forth plainly so everyone involved, including the courts, know your wishes?
If you are at a point that you would like to know more about having a will for your family, please schedule a short conference with one of our Moultrie estate planning attorneys. Even if you choose not to make a will right now, get as much information as you can and learn what options are out there, so when you are ready to make your will, you will be armed with the necessary tools.
Good luck and we look forward to hearing how we can help you.