This is a question I get a lot. Many, many clients express to me that they were motivated to get their Wills done because they were afraid if they passed away without a Will “the state would get their money”.
However, that’s not really what happens. There are a couple of issues at play: (1) Who gets your money if you pass away without a Will in Georgia; and (2) if the state will get your money.
To answer the first issue, if you pass away without a Will in Georgia, where your probate estate passes is determined by Georgia law. Georgia law says that if you die without a Will, your probate estate will be shared among your spouse and children, and if none, then it passes to your parents, and if they aren’t living it will pass to your siblings. Your probate estate includes any property you own in your individual name (and not joint with right of survivorship) and any accounts that do not have a beneficiary form or accounts on which your estate is named as beneficiary. Assets that are owned jointly or have beneficiary forms pass outside the Will. This distribution of assets may sound reasonable, but most married couples wish for their spouse to get everything, and for the assets to pass to the kids upon the spouse’s death.
To answer the second question, no, in most cases the state will not get your money. A couple of cases in which the state could end up with your money is if you owed estate taxes, or if you had no living relatives. If you had a very large estate ($5.25 million if you passed away in 2013), anything over amount that would be taxed and could end up in the hands of the federal and/or state government. You could possibly avoid that by doing some tax planning in your Will. If you died without a Will and had NO living relatives (meaning no parents, siblings, spouse, children, aunts, uncles, cousins, nieces or nephews, etc.) your estate could pass to the state (it’s called “escheating” to the state). That would be an unusual situation, but it happens. You could avoid that by doing a Will and naming friends or charities to inherit your property.
If you want to learn more about Wills in Georgia, call Sarah White, Marietta estate planning attorney, at 678-453-6490 or email me at firstname.lastname@example.org. I will be happy to talk with you for free over the phone. I work with clients in the northern Atlanta suburbs, including Marietta, Woodstock, Kennesaw, Canton, Cartersville, Acworth, Smyrna, and Roswell.
What happens if you die without a will in Georgia depends greatly on what types of property you own, what your family situation is, and other factors. First, it should be noted that wills only dispose of probate property. Probate property consists of assets that you own in your individual name, rather than jointly with another person, and assets that don’t have a beneficiary form, or assets in which the estate is listed on the beneficiary form. Some examples of property the will doesn’t dispose of include assets you own jointly with another person, life insurance proceeds and 401(k) or IRA proceeds that have a named beneficiary.
So if you don’t have minor children and you own everything jointly with your spouse, and you want your spouse to get everything when you pass, you may pass away without a will with no real negative consequences. However, if you and your spouse were to die in an accident together, or your spouse failed to do a will after you pass, then your heirs could run into a potential nightmare.
If you pass away without a will in Georgia, your probate property passes to a list of people listed under Georgia intestacy statutes. Typically, spouses and children inherit equally, with the spouse taking no less than a third of the probate property. If you don’t have a spouse or children, your parents would inherit, and if your parents aren’t alive, then your siblings would inherit. The law doesn’t take into account whether or not you have a relationship with those people.
Some other reasons for doing a will, besides listing who gets what property when you die, include naming a guardian for your children and setting up a trust for them. Naturally, you want to have a say in who will be raising your children if both of their parents were to pass away, and without a will the court will decide without your input. Also, you want your property to be protected for your children if they are young, and this can be accomplished easily through a testamentary trust.
Wills also can be beneficial because they allow you to choose who you want to serve as your Executor, who will wrap up your affairs once you’ve passed away. If you don’t name anyone, the court will decide, and who they pick isn’t necessarily who would do the best job. Your will can also excuse your Executor from posting a bond and filing an inventory or annual returns with the probate court.
I meet very, very few clients who don’t have a real need for a will. Virtually everyone has at least one reason for doing a will. If you would like to talk further about whether you need a will or not, call me, Sarah White, Marietta estate planning attorney at 678-453-6490 to learn more.
A lot of people ask me how they retitle an automobile if a loved one died intestate (without a will) in Georgia.
It’s pretty simple. Fill out this form if your loved one either did not leave a will or left a will that is not going to be probated. The heirs must agree among themselves about the ownership of the car, and any liens on the car must be released. The title should be submitted if it’s available.
DJ AM, a celebrity deejay, passed away last week after a suspected overdose. He had an income of $3.5 million annually but carried $2.9 million in debt. At the time of his death, he did not have a spouse or children. His mother filed papers today asking to oversee his estate. Click here to read more.
This is a question I get all the time.
Under Georgia law (O.C.G.A. § 53-2-1), if you die without a will and you have no children, the spouse is the sole heir. If you have a spouse and children, they split the estate, as long as the spouse doesn’t get less than a third of the estate. For example, if you leave a spouse and one child, they each get half. If you leave a spouse and two children, all three get one-third. If you leave a spouse and three children, the spouse gets one-third and the children split the remaining two-thirds.
If there is no spouse, the children get it all. If there is no spouse and no kids, the parents inherit. If no spouse, kids, or parents are around, then the siblings get it all.
This answer only applies to property that is considered to be probate property. Common examples of property that is not typically probate property are life insurance, retirement accounts and other accounts that have a beneficiary designation, and some property that is owned jointly with another person.
Have any other estate planning questions? Email me at email@example.com.
This article answers the question of what happens to stocks when parents die. Typically, they will pass under the parents’ wills. If there aren’t any wills, state law controls what happens. The article mentions the website www.mystatewill.com, which has an intestacy calculator for each state.