Thinking about the future can be daunting, especially when it comes to making decisions about what you want to happen after you’re gone. However, if you don’t have a will, you might end up putting your loved ones in an unnecessarily problematic position during an already difficult time. In Georgia (and in many other states) dying without a will—legally known as dying “intestate”—can lead to many complications that can be avoided with proper estate planning.
A Cautionary Tale About Dying Without a Will
John and Isabel had been married for more than 35 years. When Isabel passed away unexpectedly, it should have been a simple process for John to inherit her assets. Unfortunately, Isabel had never drafted a will. This meant that, in addition to grieving his wife’s untimely death, John had to embark on a daunting journey through the probate process. During this elaborate process of court filings and probate proceedings, John and his attorney discovered assets that they could not access. On top of that, a few longstanding family conflicts created friction over who should inherit which of Isabel’s assets. By not drawing up a will, Isabel had inadvertently cost her husband time, money, and the headache of having to deal with complicated legal issues while still mourning her death.
Luckily, it’s easy to avoid the unfortunate fate suffered by John and Isabel. Drafting a will or trust can streamline the probate process, or help your loved ones bypass it altogether. As we’ve seen in the case of John and Isabel, dying without a will creates daunting complications that can easily be avoided through proper estate planning.
What Happens When You Die Without a Will?
When someone dies intestate, state law dictates how their assets will be distributed. This means you have no control over who inherits your property, which can be particularly problematic if you have specific wishes for certain belongings, or if there are potential heirs you would prefer to exclude. The absence of a will can result in assets being divided in ways that might cause conflict between loved ones, and that might not align with your personal desires.
The distribution process starts with appointing an estate administrator, who is responsible for managing and distributing your estate. This person is typically a close relative, but if there is any disagreement among family members over who is best-suited to this role, it can lead to delays and conflicts. This underscores the importance of properly drafting a will, and ensuring that your possessions are handled according to your wishes.
Georgia law outlines a specific order of inheritance. If you are married with children, your spouse and children will share your estate equally, with your spouse receiving at least one-third of the assets. If you have no children, your spouse inherits everything. In the absence of a spouse or children, the estate passes to other relatives in a predefined sequence. This can sometimes result in distant relatives inheriting your assets, which might not be your intention.
Additionally, dying without a will can lead to higher legal fees and a prolonged probate process, adding financial and emotional stress during an already trying time. Proper estate planning, including the creation of a will, can mitigate these issues by clearly outlining your wishes and simplifying the legal process after your death.
Creating a will streamlines the probate process and allows you to designate beneficiaries, choose an executor to manage your estate, and make specific bequests. It also provides an opportunity to establish guardianship for minor children, ensuring they are cared for by individuals you trust. This aspect of estate planning is crucial for parents who want to secure their children’s future.
Those that prefer to keep their families and estates out of the courthouse can opt for a revocable living trust which has all the benefits of a will with the additional benefit of avoiding the need for the probate process.
By engaging in comprehensive estate planning, you can minimize administrative headaches and provide your loved ones with clear instructions and peace of mind, knowing that they are carrying out your wishes as intended.
Advantages of Drafting a Will
Drafting a will helps streamline the probate process and allows you to:
- Designate beneficiaries for your assets
- Make specific bequests
- Choose an executor to manage the settlement of your estate
It also provides an opportunity to name a guardian for minor children, ensuring they are cared for by people you truly trust. This aspect of estate planning is crucial for parents who want to secure their children’s future.
Disadvantages of a Will-Based Estate Plan
A will-based estate plan has several shortcomings:
- Beneficiaries may disagree about the distribution of assets, leading to legal disputes that complicate the probate process
- Beneficiaries can file claims against the estate if they feel their inheritance is unfair
- The validity of a will can be challenged for a number of reasons, leading to costly delays in the probate process
- All wills must go through probate, and probate is a public process
For those desiring to keep their family and estate affairs private and out of litigation, a trust-based estate plan is the optimal choice. There are many different types of trusts, but most offer the same benefits as a will, with the additional benefit of avoiding probate and having more control over the way your assets are distributed.
By engaging in comprehensive estate planning, you can minimize administrative headaches and provide your loved ones with clear instructions and peace of mind, knowing that they are carrying out your wishes as intended.
FAQs About Dying Without a Will
What happens if I die without a will?
In the event you die without a will, the probate court will appoint an estate administrator to manage the distribution of your assets. Typically, the court prioritizes the family member who first petitions for this role. The administrator will then settle your outstanding debts before distributing the remaining assets according to Georgia’s intestacy statutes.
If you have minor children and die without a will, the court will name guardians for your children. These guardians may not be who you would have chosen, given the opportunity.
Dying without a will can create chaos for your loved ones. Not only can the probate process be time-consuming and costly, but it can leave the door open to family disputes and claims from creditors and predators.
We strongly recommend working with a qualified estate planning attorney to draft a will. It will afford you more control over how your assets are distributed, the ability to make specific bequeaths, and—most importantly—will leave your family with clarity in an otherwise uncertain and emotionally-wrought time.
If I die without a will in Georgia, who gets all my “stuff”?
If you die without a will in Georgia, the probate court will assign an estate administrator who will oversee the distribution of your assets according to state intestacy laws:
- If you have a surviving spouse but no children, they will inherit your entire estate.
- If you have children but no spouse, they will inherit your estate equally.
- If you leave behind both a spouse and children, your spouse will inherit 1/3 of your estate and your children will split the remaining assets equally.
- If you have no spouse or children, your assets will be distributed to your surviving parents, siblings, or other surviving family members.
If you have no surviving relatives, your assets will go to the state of Georgia.
If you want to have more control over how your assets are distributed, you should speak with an estate planning attorney about drafting a will or trust.
Are handwritten wills valid in Georgia?
Handwritten wills, also known as holographic wills, are not valid in Georgia. Technically, if two competent witnesses—who are of sound mind, and who you know personally—also sign your will, it could be validated by a probate judge. However, this would be a huge gamble.
Drafting a will with the help of a qualified estate planning attorney will ensure your will holds up in court, and that your wishes will be executed as intended.
Do I need to hire an attorney to draft my will?
Drafting a will is a relatively painless process, but it’s crucial to consult with an attorney. There are many do-it-yourself will services out there, but before you take matters into your own hands, we strongly encourage you to seek the guidance of a qualified attorney. There are many risks that could come back to bite you if you choose to DIY your will. Only an experience attorney can ensure your will is legally sound, in compliance with state law, and drafted in a way that makes your wishes and intentions crystal clear.
Contact the Estate Planning Law Group of Georgia
If you have any questions about setting up a trust or about any aspect of your estate plan, do not hesitate to reach out to the experienced attorneys at the Estate Planning Law Group of Georgia. Fill out the form below and start securing your legacy today.
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