Often individuals create a will several years before they pass away.

The gap between selecting beneficiaries and death can often lead to complications when it comes to probating the will, because beneficiaries may have passed away themselves or life changes such as divorce or adoption may have occurred in the deceased’s life. How do these changes affect the allocation of assets?


If the deceased selected their spouse as the primary beneficiary of their will and subsequently divorced, most would assume that they did not intend for their ex-spouse to collect the assets under the will.

Thankfully, the law recognizes that. In this situation, the will is treated as if the ex-spouse did not survive the deceased. Whether any heirs of the ex-spouse will benefit depends on several factors, such as whether there were any children from the marriage and who was named as the backup beneficiary.

Death of a Beneficiary

Sometimes, people named in the will pass away before the will is probated. Most of the time, the assets allocated to the deceased beneficiary will pass on to his or her heirs.

For example, if the testator gifted a savings account worth $100,000 to the testator’s brother, but the brother passed away before the will is probated, the assets in the savings account would pass on according to the backup clause in the will or in accordance with the state’s intestacy laws.

Children Born After the Will is Created

Sometimes, testators create a will, then adopt or have more biological children later in life. Adopted children receive the same legal rights as biological children under Georgia law, so estate law applies to both in the same way.

Even though these children are not specifically named in the will, they will still receive a portion of the deceased’s assets. If the testator already has children that are provided for in the will, then the new child usually shares a portion of the assets allocated for them.

For example, if the testator has two children and they are granted $120,000 in the will, they would each receive $60,000 upon the testator’s death. But, if the testator had a third child after the will was executed, then all three children share the $120,000 gift, therefore receiving $40,000 each.

If the testator did not have any children when the will was created, then the new child would receive a portion of the estate based on the intestacy laws (these are state laws which apply to individuals who die without a will).


Georgia law requires that minors receiving benefits from an estate have their assets guarded by an adult until they turn 18.

The process for managing the funds can be laid out in a will or trust. If there is no will or trust then the court must appoint a conservator for the minor heir to guard the assets until the child becomes an adult.

Call Brian M. Douglas and Associates Today

Issues concerning beneficiaries can be complicated, and it is important to have sound legal guidance to make sure the deceased’s wishes are met in compliance with Georgia law.

Call Brian M. Douglas and Associates today at (770) 927-8827 to set up an consultation and to discuss your situation.