What Happens If I Pass Away Without a Will?

Passing away without a will or other instrument to direct the probate of your estate is known as dying “intestate”.  The number of people in Georgia who pass away without an estate plan in place is staggering.  Ultimately, this causes many issues for their family and loved ones who have to put handle the individual’s affairs and property at the time of passing.

As discussed in prior posts, nearly everyone needs 3 basis estate planning documents: 1) Will,  2) Advance Directive for Healthcare,  3) Springing Durable Power of Attorney.  Right now I want to tell you some basis facts about the importance of having a will and why it is important to almost every adult.

What rules or authority are in place?  At the time of your passing, the manner in which your property is distributed and how your affairs are managed is determined by Georgia law.  The probate court is in charge of the distribution and management process.  They monitor and provide authority and instruction to an executor or administrator of your estate.  You can direct the court as to how you would like your property and affairs to be handled via a legal testamentary document.  The most common type of document is a last will and testament or (“Will”).  Please note that this is very different from a Living Will.  Please don’t confuse the two documents.

How does the process get started?  So, assuming that you pass away without a will in place, here is how the process typically works.  Someone will notify the probate court of your passing.  This will typically require the presentation of the death certificate.  In some cases a person will pass away and will have absolutely no property or money.  In this case, no probate is necessary.  The probate court will stamp the action as such and, with regard to probate, the process is over.  However, most people have some property and, equally, so debt that needs to be administered.  In this case, the probate court will open a probate action.  Concerned individuals are notified of the probate action and the probate court will accept petitions to executor or person representative of the estate. As stated above, this is the person to administer the affairs of the estate.  Typically, the person appointed as executor is the spouse – but that may not always be the case.  Under the law, anyone can petition to be appointed executor – even someone not related to the testator.

How, how will the probate court distribute your property?  Generally, your property will be distributed to your immediate family.  Your spouse and legal children (biological or adopted) will take an equal share of your property.  If you don’t have immediate family there is a succession of rules and to whom the property passes among your next-of-kin.  In the situation where you have minor children, the court will determine how the property is held and managed and by whom.  This is an issue, as you likely do not want your minor child to own an interest in you home, car, property, etc.  This can tie up the process for selling or borrowing against any of this property.  In short, it can create a tremendous hassle and require significant legal expenses to deal with the property.

What if you are the sole care-giver or parent of your minor children?  Under you will you can elect who should be the legal and physical guardian of your children if you and the other parent have passed away or are unable to be the caretaker.  If no, then concerned individuals will need to petition the court.  Needless to say, you do not want the court deciding who should have custody of your minor children.  This is one of the most pressing reasons to have a will in place.

Other provisions?  There are numerous other provisions that are included in a will, such as burial, distributing individual assets, setting up trusts, etc.  However, the two issues listed above are by far the most important and pressing.  You can visit http://www.GAWillsOnline.com and read through our information papers and resources to learn more about wills, trusts, estates, and the estate planning process.

Jason M. Gordon, Esquire



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