Questions frequently come up about what happens to a person’s assets when they die without having a Will or Revocable Living Trust in place. Family members often wonder if they are potential heirs when a relative dies, or they aren’t sure what to do if a parent never created a Will because they didn’t own many assets.
We always say that everyone effectively has a Will, whether they realize it or not. When a person dies without properly executing a Will with an estate planning attorney, they then are subject to the Will of sorts that is automatically provided by state law.
What is Dying ‘Intestate?’
Without a properly written and notarized Will, the laws of descent and distribution – also known as intestacy laws – in the state where the deceased person had their primary residence will apply. If the decedent owned property in other states, the intestacy laws of those states will apply to that real estate.
Dying intestate means that the state will determine what becomes of your assets if you don’t expressly state how to dispose of them, and the courts will decide who gets your property when you die.
In general, intestacy laws deem certain people to be your heirs and then they set out to distribute your assets among them.
Determining Descendants
Every state follows rules of kinship when it comes to finding a person’s closest living relatives who could be heirs.
In Georgia, the rules of kinship are generally as follows:
1. Married with Kids: If the person is married and all children are surviving, the heirs will be the spouse and biological or adopted children. Stepchildren are not counted as descendants, unless they were adopted by the decedent or one of the decedent’s descendants.
2. Not Married with Kids: If there is no spouse, the children divide the entire remaining probate estate, after expenses such as taxes and debts are paid.
a. If a child died before the deceased person, the child’s share will pass to that child’s own children, if there are any.
b. If a grandchild also died before the deceased person, that share goes to the grandchild’s children.
3. Married without Kids: If there is a surviving spouse but no children, grandchildren, or other descendants, the spouse is the only heir.
Any person who receives assets as an heir receives his or her share outright. If an heir is under age 18, then a formal, court-supervised custodianship will have to be set up for that person’s share, and the heir will then receive full control at age 18.
No Direct Descendants
If there are no parents, siblings, nieces, nephews, or descendants of nieces and nephews, the next relatives in line to be heirs are the deceased person’s four grandparents, if still living.
If there is no living grandparent, then the aunts and uncles will be the potential heirs. As with siblings, a deceased aunt or uncle’s share goes to that person’s own descendants (the decedent’s cousins).
What if Heirs Can’t be Found?
If none of the relatives described is still living, then a search begins for even more remote relatives. There is a complicated set of rules in place to help the administrator or executor of the estate determine who would be the closest living relative. In many cases, these could be people the decedent didn’t even know or hadn’t seen in a long time.
If no living relative can be found at all, then the decedent’s remaining probate assets go to the state, to be added to the state’s own funds. This is called escheating to the state.
Most people have heirs of some sort, even if the heirs end up being remote relatives. However, it may be difficult to locate those heirs within the timeframe allowed by intestacy laws.
The bottom line: Even if you believe that your assets are modest and you have no close heirs to pass them to, you can still benefit from estate planning. Not only would a properly written Will remove guesswork for those handling your property and assets, but you could also maintain some control over whatever assets you own, such as potentially leaving a gift to a favorite charity once your estate is settled.
Morgan & DiSalvo’s team of estate planning attorneys in Atlanta are experienced in offering counsel in complicated estate situations, including those in which someone has died without a Will. If you or your family needs help determining heirs and next steps, please call (678) 720-0750 or email info@morgandisalvo.com.
