Question: My uncle died without a Will, and he had no spouse and no children. My dad was the last living sibling, and he doesn’t want my uncle’s assets. Would I be one of the next heirs?
Loraine’s Answer: Maybe. However, determining your uncle’s heirs and how his property will pass may involve more than just determining who his last living sibling was.
If your uncle died as a resident of Georgia (other states may have different rules), if he had no surviving spouse, if he had no living descendant (not just any living children, but no living grandchildren, great-grandchildren, or other descendants) who survived him, and if neither of his parents survived him, then the next people in line to be his heirs would be his siblings. However, if your uncle had no surviving children but he had grandchildren who survived him, for example, then his grandchildren would be his heirs, and neither your father nor you would be heirs.
If your uncle had no surviving descendant, no surviving spouse, and no surviving parent, then, as a sibling, your father would at least be one of your uncle’s heirs. But when you say your father was the last living sibling, that implies that your uncle had other siblings. The question then is whether any of the other siblings have any living children or other descendants who survived your uncle. If not, then your father would likely be your uncle’s only heir. However, if any of your uncle’s other siblings had any descendant who survived your uncle, then your father would still be an heir, but he would not be the only heir.
Under Georgia law, if a person dies with no Will and the person’s estate goes to his heirs, then if there is no surviving spouse, descendant, or parent of that person, then the person’s net probate estate (what remains after debts, expenses, and taxes have been fully paid) is divided into equal shares. Each surviving sibling gets a share, and each sibling who does not survive but who has a descendant who survives gets a share. So, if for example, your father was your uncle’s only surviving sibling but your uncle also had a sister who died before him but who left two children of her own, both of whom also survived your uncle, then your father would receive half of your uncle’s net probate estate, and the two children from the deceased sister would split the half she would have received.
Your father is allowed to renounce and disclaim his interest in your uncle’s estate if he does not want it. He has to comply with certain state law requirements as to timing and documentation in order to do so effectively and without being deemed to have first accepted the property and then given it away. (Note: In Georgia, a disclaimer is called a renunciation, but it’s called a disclaimer under federal law.) Under Georgia law, a person who makes an effective renunciation and disclaimer is treated for intestacy law purposes as if he or she died before the person whose estate the disclaimer relates to. If your father makes an effective renunciation and disclaimer of his share of your uncle’s estate, then you, as one of your father’s children, would be treated as if you were an heir to your uncle’s estate, and you would receive a share of the share your father would have taken. The exact share you would get would depend on how many children your father had and which of them either survived your uncle or had descendants of their own who survived your uncle.
If your father wishes to renounce and disclaim his interest in your uncle’s estate, he should do so in writing, no more than nine months after your uncle’s death, and he should provide the administrator of your uncle’s estate with the written statement of renunciation and disclaimer in that same nine-month period. The renunciation and disclaimer must be irrevocable (in other words, your father must state not only that he renounces and disclaims the interest but also that he waives any right to revoke that renunciation and disclaimer). It must specifically describe what is being renounced and disclaimed (that could be something like “any and all right, title, and interest in and to the estate of the late X” or other, more specific language, depending on what your father actually intends to disclaim).
Your father cannot direct or control where his disclaimed interest will go—in other words, he cannot try to give his entire interest to only one of his children, to his spouse, or to anyone else—and he should not state in the disclaimer document where he wants the property to go. He can only renounce and disclaim all rights and interests he would otherwise have as an heir to the estate and let intestacy law take over from there. I would strongly advise your father to engage an attorney to help prepare the renunciation and disclaimer, as the rules can be tricky to comply with in order for a disclaimer to be qualified and there can be gift tax and other tax consequences if a disclaimer is not a qualified disclaimer under both state and federal law. Your father may also wish to have the attorney advise him on other potential effects of a disclaimer. For example, if he is receiving Medicaid benefits, Medicaid may take the position that he accepted the assets and then made a penalizable asset transfer by making even a qualified disclaimer.
Key Estate Planning Takeaways: An heir to an intestate estate is allowed to renounce and disclaim an interest in the estate and allow that disclaimed interest go elsewhere. To be qualified, a renunciation and disclaimer must meet certain rules, including being completed within nine months of the decedent’s passing, and state intestacy laws will control what happens after the disclaimer. In any intestate estate, determining the decedent’s heirs involves an analysis of the decedent’s family, as shares may still be created for predeceased relatives if those relatives have descendants who survive the decedent.
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.
