He Died Without a Will, Now What?
As an attorney, it makes me shudder when someone dies without a will. The deceased passed up a chance to have his or her wishes reflected, missed opportunities to minimize court intervention, and lost the opportunity to avoid any potential estate taxes. For the most part, dying without a will costs more than dying with a will.
When a person dies without a will, they are said to be “intestate”. Under the Georgia Code, an intestate person’s estate must be distributed by certain rules. Note, these rules are not flexible and do not into the account what the deceased would have wanted.
1) Obtain Letters of Administration.
This step can be time sensitive if there is litigation that needs to be done on behalf of the deceased., like a wrongful death lawsuit. The administrator has to be appointed and then file the lawsuit before the statute of limitations runs, which would be two years from the events causing the death.
I recommend that the Administrator be either a spouse, child, or, if the first two are not available, a close relative of the deceased. If the Administrator is someone entitled to estate assets, it minimizes the potential for conflict and incentives the Administrator to preserve estate assets.
The process involved filing a petition with the local probate court of the deceased. The petition must list the names of the deceased’s natural heirs, typically the spouse and/or children. These heirs must all be notified that somebody is attempting to become administrator either by being given a waiver or by being served. If you have trouble with this process, either work with an attorney or a clerk at the probate court to make sure everything is done correctly.
Barring any conflict, the probate court will eventually grant the petitioner a Letters of Administration, allowing the Administrator to act on behalf of the estate. Depending on the court, it could happen in any period of time ranging from a few weeks to a few months (some have been known to take even longer).
2) Administrator distributes estate according to O.C.G.A § 53-2-1.
The following rules apply:
- If the deceased has a spouse and no children, the spouse is the sole heir.
- If the decedent is also survived by any child or other descendant, the spouse shall share equally with the children, with the descendants of any deceased child taking that child’s share, per stirpes; provided, however, that the spouse’s portion shall not be less than a one-third share.
- If the decedent is not survived by a spouse, the heirs shall be those relatives, as provided in this Code section, who are in the nearest degree to the decedent in which there is any survivor;
- Children of the decedent are in the first degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased child taking, per stirpes, the share that child would have taken if in life;
- Parents of the decedent are in the second degree, and those who survive the decedent shall share the estate equally;
- Siblings of the decedent are in the third degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased sibling taking, per stirpes, the share that sibling would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no sibling survives the decedent, the nieces and nephews who survive the decedent shall take the estate in equal shares, with the descendants of any deceased niece or nephew taking, per stirpes, the share that niece or nephew would have taken if in life;
- Grandparents of the decedent are in the fourth degree, and those who survive the decedent shall share the estate equally;
- Uncles and aunts of the decedent are in the fifth degree, and those who survive the decedent shall share the estate equally, with the children of any deceased uncle or aunt taking, per stirpes, the share that uncle or aunt would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no uncle or aunt of the decedent survives the decedent, the first cousins who survive the decedent shall share the estate equally; and
- The more remote degrees of kinship shall be determined by counting the number of steps in the chain from the relative to the closest common ancestor of the relative and decedent and the number of steps in the chain from the common ancestor to the decedent. The sum of the steps in the two chains shall be the degree of kinship, and the surviving relatives with the lowest sum shall be in the nearest degree and shall share the estate equally.
3) The Administrator closes the estate
