The death of a parent can be emotionally devastating. If the parent passes away without a testament to establish how to distribute his possessions clearly, the confusion and trauma can be even more profound. One of the most frequently asked questions we receive is, “What is a child entitled to when a parent dies without a will in Georgia”?
A testament appoints an executor to manage and distribute the assets of a deceased person to beneficiaries and helps prevent disputes between them. But if a parent dies without a will, or the testament is invalid, the rules of the state’s intestate succession laws from Georgia come into force, dictating who inherits and how the remaining assets and property should be distributed.
In this post, we’ll provide an overview of some key issues that can arise after the death of a parent without a valid will, including inheritance rights, guardianship considerations and estate administration.
Intestate succession explains who is to receive an inheritance in an estate when the deceased doesn’t leave a valid will. When someone dies intestate, or the distribution of their will is deemed invalid, the estate goes through a probate process and is determined by the state’s intestacy law.
According to Georgia intestate succession laws, a few situations can occur:
You should know that a Year’s Support could change the inheritance amount, and it can be made on behalf of the surviving spouse or minor children to claim more than their share of the estate.
If one of the children dies before the decedent and has children of their own, they would stand in their place to receive the share of their deceased parent.
If one parent has passed away but another parent is living, then he/she would receive the inheritance. If both parents are living, then the inheritance is split between them.
d) If both parents of the deceased passed before the decedent, then the siblings of the decedent are next in line of succession. If one or more siblings are deceased and have children, they will be in the succession line.
e) Grandparents of the deceased would receive the inheritance if none of the above were living.
f) Uncles and aunts of the deceased would receive if none of the above were living
If an aunt or uncle had passed away before the deceased and has children of their own, they are entitled to receive that share instead of their parents.
g) First cousins of the deceased would be next to receive if none of the above surviving relatives were living.
According to Georgia Intestate Laws of Succession, all assets must go through probate proceedings by default unless an exception classifies them as non-probate assets.
In addition, if the deceased was married when they passed away, the surviving spouse may be entitled to a year’s support, which could change how much the deceased’s adult children could be entitled to.
If the decedent had minor children, they may also be entitled to a year’s support, which could affect the potential inheritance of the adult children. If the latter do not agree with the requested amount for the year’s support, they can file an objection. In this case, the court may set a further hearing to decide how much, if any, the surviving spouse and/or minor children will receive.
When a parent passes away, any assets with a named beneficiary or a shared interest with another party with survivorship on the title are considered non-probate assets.
They skip the probate process and are distributed directly to the designated beneficiary or co-owner of the asset.
Power of attorney is voided after the principal has passed away. If the deceased did not have a will, then the heirs choose someone to be appointed as a personal representative over the estate affairs.
If the heirs can’t agree on who will become the administrator, the court will decide on that appointment. It can designate a family member as sole administrator or multiple surviving family members as co-administrators.
Also, the probate court could appoint a third-party county administrator to serve as a personal representative.
When deciding about the share of the estate a child is entitled to receive if a parent dies, you can face one of these situations:
In this case, the questions are: “Were any of the deceased’s assets owned jointly with the surviving spouse?” and “What is a child entitled to when a parent dies without a will?”
The estate’s assets that were jointly owned property with the surviving spouse or that have her/him designated beneficiary may be viewed as non-probate assets and according to the state laws, they would go directly to the surviving spouse.
The assets that were not owned jointly with the surviving spouse or that don’t have a designated beneficiary will go through the probate process.
Without a will, the surviving spouse is entitled to at least 1/3 of the intestate estate after the creditor claims are fulfilled.
If the deceased only had one child, the surviving spouse would be entitled to half, and the child would be entitled to half.
If the deceased had more than one child, the surviving spouse is entitled to 1/3 of the estate, and the children inherit the remaining 2/3 of the property.
Please note that a year’s support can change the amount the surviving spouse and/or children will receive.
In this case, the children of the deceased would equally split the inheritance after the creditors are satisfied.
Please note if there are also minor children who have the right to inherit, this can modify the received amount for everyone. That is, if minor children are to receive support for a year, then adult children may receive less than what they initially expected.
If all the children are adults and the deceased was not married, they will share the inheritance equally after paying the deceased’s debts.
If there are both minors and adult children and the deceased was not married, the inheritance is divided equally between the children. However, if a year’s support is filed on behalf of the minor children, they may receive a larger share of the estate than the adult children.
As the minors are not legally adults, they aren’t allowed to manage personal or legal affairs on their own. This means that you must use legal solutions to ensure that your child will have access to the inheritance when they reach adulthood.
If the minor child inherits more than $15,000, Georgia law states that a conservatorship must be established for them. Even though minors are not allowed to own property, the minor’s parent or guardian can hold up to $15,000 for the minor’s benefit as a custodian. If the inheritance is more than $15,000, then a conservatorship may be required.
A conservatorship for a minor is a legal status where a court appoints a person to manage a child’s assets until he or she turns 18. While the conservator is often a natural parent, other family members (or even the county conservator) can fill this role.
To establish a conservatorship, a petition must be filed with the probate court. Once a conservator is appointed, they must provide the court with an initial inventory accounting for all the assets the conservator holds. Each year afterwards, the conservator must file an annual return updating the inventory, along with an asset management plan of expected expenses.
Conservatorships are very restrictive. For example, the conservators cannot spend any money without court permission. In addition, they are severely limited in how to invest the funds.
When it comes to the guardianship of a minor, we meet one of the following situations:
In this case, the living natural or adopted parent is the child’s guardian.
If both parents of the child have passed away and the deceased passed without a will, then someone else, typically another family member, can request to become appointed as the guardian of the minor child.
In case the minor receives an inheritance from one or both parents’ estates, then the person requesting to be appointed guardian may also apply to become the child’s conservator.
They must file a petition with the probate court, which will determine at a hearing who will be designated to fulfil this role.
As mentioned before, if a parent dies without a will, the children’s inheritance rights are influenced by several factors.
To avoid any of the hardships, it is recommended that you have a will in which you appoint an executor and a guardian for your minor child(ren) and specify the age at which you want the child(ren) to receive the entire inheritance.
The mandatory distribution scheme that applies if you die without a will may not reflect your wishes regarding the inheritance you want to leave to your children. That is why a will is highly recommended, even if your child or children are adults.
If the deceased was in a second marriage and his spouse has children from a previous relationship, their legal status determines whether they receive a share of the inheritance.
Stepchildren of the deceased would not inherit anything from the deceased’s estate if they passed away without a will unless the deceased had legally adopted them.
If they were legally adopted, then they would not be considered stepchildren but the deceased’s adopted children.
If the only name on the deed to the real estate is that of the deceased, then the property will have to go through the probate process to be appropriately transferred to the heirs.
When there is no will, the family members will nominate someone to become an administrator, who will only be authorized to act once the court has appointed them to their position.
If the family members cannot agree on a representative, the court will take over and name someone as administrator to handle the estate, including real estate.
Once a personal representative has been appointed, they must run a creditor/debtor ad in the newspaper for four weeks to properly notify creditors that the estate has been opened. The estate then must be open for an additional three months before the heirs can receive their entitlement.
Under Georgia intestate laws, the administrator can distribute a decedent’s estate to his successors only after all debts have been paid.
If there are not enough liquid assets in the estate to satisfy all creditors, then real estate may have to be sold to satisfy the creditors.
If the real estate is owned by the deceased and another person as joint tenants with rights of survivorship (JTWROS), then the remaining survivor(s) on the deed would automatically receive the property.
If the real estate is owned by the deceased and another person but is not titled as JTWROS, it is assumed to be owned as Tenants in Common (TIC). The deceased’s share of the real estate must go through the probate process to be appropriately transferred to heirs.
When there is no will, the family members nominate someone to become an administrator; this person is only authorized to act once the court has appointed them to their position.
If the family members cannot agree on a representative, the court will take over and appoint someone as administrator to handle the estate, including real estate. The same can happen when a previously appointed administrator is removed for mismanaging the estate.
If another person is listed on the property’s deed aside from the deceased, they may also have the authority to manage the real estate.
If you find yourself in the unfortunate circumstance of having a parent pass away intestate, professional assistance can make the difference in protecting your interests and ensuring a fair distribution of assets.
Our experienced probate attorneys are ready to help you understand what a child is entitled to when a parent dies without a will and will provide strategies tailored to your specific situation. You can contact our office at (770) 796-4582 to schedule a consultation.
Disclaimer: The information above is provided for general information only and should not be considered legal advice. Our probate attorneys provide legal advice to our clients after talking about the specific circumstances of the client’s situation. Our law firm cannot give you legal advice unless we understand your situation by talking with you. Please contact our law office to receive specific information about your situation.
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