The time after a parent passes is incredibly emotional. If your parent passed without a will, this period can also be very stressful. Without a will, it is not always clear what your parent would have wanted or how their estate will be handled. Fortunately, Georgia state law outlines the procedures to be followed if a Georgia resident dies “intestate” (meaning, without a will).

Georgia statute lays out the procedure by which an administrator can be appointed to the estate, how creditors should be paid, and which heirs-at-law will receive distributions from the estate.

Who Is In Charge of the Estate?

Without a will naming an executor to the estate, the probate court will need to appoint an administrator who can manage the distribution of the estate in accordance with the laws of intestacy. You can petition the court to be named the administrator or support another member of your family’s petition. The probate court will examine petitions and issue letters of administration to an individual, authorizing that person to act on the estate’s behalf.

Who Will Inherit Under Georgia Intestacy Laws? 

The Georgia intestacy laws offer guidelines for estate distribution based on the surviving members of the decedent’s family. If your parents were married at the time that one of your parents died without a will, then the deceased parent’s estate will be split evenly between the surviving spouse and any children. However, the surviving spouse will not receive less than one-third of the estate. For example, if you are an only child, then you and your surviving parent will each receive one-half of the estate. If you have one other sibling, then you, your sibling, and your surviving parent will each receive one-third of the estate. If you have more than one sibling, the surviving parent will receive one-third, and the children will evenly split the remaining two-thirds of the estate.

If your parent was unmarried at the time of his or her death (single, divorced, or widowed), the estate will be divided equally among all children.

If your parent had any descendants who pre-deceased them, their heirs will still be included in the estate distribution. For example, if your mother had three children – you, your brother, and a sister who died several years ago – your mother’s estate will be distributed as follows: one-third to you, one-third to your brother, and one-third to your sister’s descendants (her portion may be split again by her heirs if she had more than one descendant).

Not all assets will be included in the “estate” for the purposes of probate. Many assets are considered “non-probate.” Property that is titled as a joint tenancy with the right of survivorship, for example, will simply pass to the joint tenant without any need for the court. In addition, many bank accounts, retirement accounts, and insurance policies have beneficiary designations. If your parent named beneficiaries on these accounts, they will pass to the named beneficiary without being considered part of the intestate estate.

What If My Parents Owed Debts When They Died?

Before any assets can be distributed to heirs, the administrator of the estate will first have to satisfy any outstanding debts the decedent owed. Once all creditors are paid, then the remainder of the estate will be distributed to heirs-at-law. However, if the decedent owed more than the total value of his or her estate, the estate is considered insolvent, and there will be nothing for heirs to inherit.

How to Avoid the Challenges of Intestacy?

Many people never get around to drafting a will or creating any estate plan. A common thought is: Why bother? My wife/husband will just inherit everything anyway. As explained above, Georgia intestate law does not simply allow the full estate to pass to the decedent’s spouse. Another common feeling is that the family will just work things out amongst themselves. Under Georgia law, again, this assumption is mistaken. The estate will need to be distributed formally through probate court and in accordance with state laws. Quite often, the intestate laws do not create the result that the decedent or the family expected.

Ask An Atlanta Probate Attorney For Help

How best to avoid the challenges of intestacy? Meet with a probate and estate planning attorney. Estate planning does not have to be complicated. An experienced attorney can help your parents (or you) draft simple, clear documents that communicate your wishes and name an executor. Even the most basic of documents will ease stress for surviving family members and allow them to be confident that they are following your wishes and honoring your legacy. If you have recently lost a parent, give us a call at our Atlanta office at (770) 933-9009, to schedule an appointment with our lead probate and estate planning attorney.