Question: I am the named executor for my friend’s Will in Georgia. He was widowed in 2005. In his Will, he clearly disinherited his two children and their descendants. His third child is under the legal guardianship/conservatorship of his disinherited daughter (the third child is legally medically incapacitated). His parents are both deceased. He only has one surviving sibling and several nieces and nephews from his late wife’s side of the family. How do I list the heirs on the probate form? Do I list just the children?
Loraine’s Answer: Assuming your friend was not married at the time of his death, that the three children you mention are the only children he ever had or legally adopted, and that all three of those children survived him, then those three children would be his only heirs. It does not matter whether he intended to benefit them. A person’s status as an heir is determined by Georgia law, not by whether they are intended to benefit. If your friend was married, then his spouse would also be an heir, along with his children. If he had a biological or legally adopted child who died before him, then that child’s own children, if any, would take that child’s place among your friend’s heirs. But parents, siblings, and nieces and nephews have no place as the heirs of a person who died leaving any surviving spouse or any surviving descendant (child, grandchild, great-grandchild, etc.)
Unfortunately, the fact that you are asking this question means you may not have an attorney helping you with the probate. I STRONGLY urge you to hire an experienced probate attorney for help. An estate is not a good do-it-yourself project. If you think your friend’s estate is too small to make it worth hiring an attorney, then you should strongly consider NOT accepting the executor’s role in the first place. Do you know the saying, “The road to hell is paved with good intentions?”
Assuming that you do want to take on this matter: You also likely should NOT file a Petition in Common Form unless there is some reason you need to get appointed really quickly and you plan to ALSO file a Petition to Probate Will in Solemn Form as soon as you can do so after you get appointed as Executor under the Common Form petition. Common Form probate is not binding for four years on the heirs, so by filing common form you leave yourself open to a challenge for a MUCH longer period. If there is any real estate in the estate, a common form petition may make life more difficult for any subsequent owner of the property, and can even make it difficult or impossible to quickly sell the property.
Key Estate Planning Takeaway: A person’s status as an heir is determined by state law, not by whether they are intended to benefit. Even in a case where a deceased person was estranged from his or her children and does not intend for them to benefit, those children are still going to be heirs, and must be appropriately listed as such on any probate court documents.
This “Q&A with Loraine” blog series is inspired by answers from Morgan + DiSalvo Partner Loraine DiSalvo to actual user questions posted by individuals on www.avvo.com. This blog is a more in-depth response than can be given on their site under their character limits for answers. To view the original question and Loraine’s original response, click here.
