Rules of Inheritance

Rules of Inheritance

Heirs at Law

The following outline is a summary of the Georgia law that determines who are heirs at law of a decedent (the person whose death necessitates the administration of his or her estate). The actual statute may be found in the Official Code of Georgia Annotated (OCGA) Section 53-2-1.The heirs are:

  • The spouse if there are no children (and no children who died before the decedent leaving living children of their own or descendants of living children)
  • The spouse and children if there are children, and the children of any child or children who died before the decedent (as well as the deceased child’s descendants if any of the deceased child’s children also predeceased the decedent)
  • The parents if there is no spouse or children, descendants of deceased children, grandchildren, etc.
  • If no spouse, children, descendants of children, or parents survived the decedent, the brothers and sisters of the decedent and the descendants of any deceased brother or sister who predeceased the decedent
  • If none of the above were living at decedent’s death, the grandparents
  • If none of the above, uncles and aunts and descendants of any deceased uncle or aunt, but if all uncles and aunts are deceased, then first cousins share equally, rather than siblings taking their parent’s share

The more remote degrees of kinship are determined by a mathematical formula involving the relative in question and the closest common ancestor. If you have gotten this far, please consult OCGA sec. 53-2-1(b)(8). You may also need the assistance of an attorney. This information is also available in the form of a flow chart below.

Inheritance Flow Chart

Probate of Wills In Georgia

Probate of Wills In Georgia

Administration of the Estate When There Is a Will

An individual who dies, also called a decedent, and who has a will is said to have died testate. The will is usually offered for probate by the individual who is named in the will as the executor. The process of probating a will is the formal process by which the Probate Court determines a document has been proved to be the last will and testament of the decedent and officially appoints the executor or some other person to handle the distribution of the decedent’s property. Even if the will is not going to be probated, anyone who is in possession of the will of an individual who has died must bring the will to the Probate Court for filing.The will is probated in the Probate Court of the county in which the decedent was domiciled at death. In order to probate the will, the executor should file the original signed will and, in most cases, Georgia Probate Court Standard Form 5 (Petition to Probate Will in Solemn Form). The standard forms are available at the courthouse or online at the official statewide Probate Court website.

Giving Notice
Notice of the Petition to Probate the Will in Solemn Form must be given to all the heirs of the decedent. In Part 3 of Standard Form 5, the petitioner must fill in the names, ages, and addresses of the heirs of the decedent. It is important to note the difference between heirs and beneficiaries. The heirs are the closest living relatives of the decedent. The beneficiaries are those people who are given property in the will. If a person is a beneficiary but not an heir, that person does not have to be listed in Part 3 of Standard Form 5. There are certain rules regarding the notice that must be given to heirs. If you need help determining the heirs of the decedent, you may consult the Rules of Inheritance page of this website, which has a text version and flowchart for determination of heirs.

Fees
The filing fees for the petition to probate the will must be paid at the time the petition is filed with the Probate Court. The Probate Court accepts cash, money orders, or personal checks made payable to Probate Court. The fees vary from court to court.


Interrogatories to the Witness of the Will
If the will does not contain a self-proving affidavit, then the petitioner must file Standard Form 6 (Interrogatories to Witness to Will) at the time he or she files the petition to probate the will. The answers to the interrogatories to the will must be filled out by a witness to the will, but the top portion may be completed by the witness, the petitioner, or the petitioner’s attorney. If the decedent is survived by a spouse and/or minor children, they may consider filing for year’s support.Some of the frequently asked questions about probating a will are answered on this website.

Frequently Asked Questions About the Administration of an Intestate Estate In Georgia

Frequently Asked Questions About the Administration of an Intestate Estate In Georgia

1.Who is eligible to serve as the administrator?

Any person who is age 18 or over and who is not incapacitated can serve as an administrator. The person does not have to be a resident of Georgia or a U.S. citizen. The person may be, but is not required to be, an heir or other member of the decedent’s family.
2.Who decides who will be the administrator?
There are two options:

  • The heirs may unanimously select the person who will serve. If all the heirs agree on who should be the Administrator, then fill in that person’s name on page 1 (Part 2) and on page 4 of the Standard Form 3. Also all the heirs must sign the Selection by Heirs portion on page 4 of Standard Form 3. If the heirs live in different places, you may make several copies of page 4 and have each heir sign a copy and have the signature notarized and file all the separate copies.
  • If the heirs can’t agree on who should serve, the Probate Court will choose the administrator. In making this selection, the Probate Court will consider, but is not required to choose, the decedent’s spouse, heirs, a person selected by a majority of the heirs, a creditor, or other eligible persons. Even if the heirs cannot agree unanimously, the person who files the petition can fill in a suggested name on page 1 of Standard Form 3, but the Probate Court is not required to appoint that person.
  • 3.Who receives notice of the petition for appointment of an administrator?
    Notice must be mailed to all of the heirs whose addresses are known. Alternatively, the heirs may waive notice by filing a written and notarized Acknowledgement of Service and waiver (page 4 of Standard Form 3). Also, notice must be published in the county newspaper if the identities or addresses of any heirs are not known or the heirs have consented to a waiver of bond and/or a grant of powers. Check the appropriate paragraph on page 4 (Part 5) of Standard Form 3. If publication is required, the Probate Court will collect a publication fee from you and will then handle the publication process. If there are heirs who are minors or incapacitated adults or who are unknown or whose addresses are unknown, a guardian ad litem must be appointed.
    4.What are the responsibilities and powers of an administrator?
    An administrator is responsible for handling the decedent’s estate – that is, for figuring out what is in the estate, for paying the decedent’s debts and for transferring the decedent’s property to the heirs.
    The powers of the administrator are limited by law so that an administrator may need to petition the Probate Court to get permission to perform certain acts (e.g., to sell property) unless powers have been granted.The heirs may choose at the outset to grant to the administrator the power to perform acts without first seeking court permission. This agreement to a grant of powers must be unanimous. All the heirs must sign and have notarized the Grant of Powers Form on page 4 of Standard Form 3.If the heirs live in different places, you may make several copies of page 4 and have each heir sign a copy and have the signature notarized and then file all the separate copies.If the heirs consent to granting powers, notice of the consent must be published in order to give anyone who has a claim against the estate the opportunity to object.
    5.Must the administrator post bond?
    To protect the estate during administration, an administrator is required to post bond and to file certain reports with the Probate Court unless relieved. The heirs may choose to authorize the court to waive the administrator’s responsibility to post bond and file reports.
    This waiver must be unanimous and the heirs must all sign and have notarized the Consent of Heirs to Waiver of Bond on page 4 of Standard Form 3. If the heirs live in different places, you may make several copies of page 4 and have each heir sign a copy and have the signature notarized and file all the separate copies.If the heirs consent to waiving the requirement of bond, notice of the waiver must be published in order to give anyone who has a claim against the estate the opportunity to object. NOTE: Before the bond can be waived, the court may perform a criminal history background check on the proposed administrator. The administrator may be required to sign a separate form consenting to the background check. The results of this check will generally be kept confidential, but they may be revealed to any attorneys or guardians ad litem who are involved in the process.
    6.How do I determine the heirs of someone who has died?
    If you need help determining the heirs of the decedent, you may consult the Rules of Inheritance page of this website, which has a text version and flowchart for determination of heirs.
    Frequently Asked Questions About Probating a Will in Georgia

    Frequently Asked Questions About Probating a Will in Georgia

    1.If I die, will the state get all of my money?
    This happens very rarely in Georgia. If you have no will and no heirs at law, then there is a chance that your estate will go to the state.
    2.Should I have a living will so that my family will not have to probate my estate?
    Living wills deal with health care and are often confused with living trusts. Georgia is probate friendly; living trusts are often times more costly and confusing. The decision for the creation of a trust should never be undertaken without the advice of an attorney who specializes in probate and estate planning.
    3.If I have a will, is my estate in good order?
    Yes and no. Having a will is a start. A will is only one tool used in estate planning and it may be necessary for your estate to have other documents to effectively carry out your desires or to handle your affairs in the event of incapacitation. Estate planning includes providing for one’s care in the time of a medical emergency in both the short term and long term. This can be accomplished through a Power of Attorney and a Durable Health Care Power of Attorney. (See Alternatives to Adult Guardianships.) A well-drawn will and a well-prepared estate will save your family time, money, and a great deal of heartache.
    4.Can I prepare my own will?
    We do not recommend that an individual prepare his own will. The wisest money a person may spend for an attorney is for the preparation of a will and related estate planning documents.
    5.Can I avoid probate?
    There are ways, especially between a husband and wife, that probate can be avoided. Seeking advice from an attorney that specializes in probate and estate planning can accomplish this goal and allow you to weigh all options in determining if this is the best course of action for you.

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