When someone dies without a will, that’s called dying intestate. If the intestate estate has assets, they will likely have to be distributed through probate court. Many estates with wills also have to go through probate, but there are differences in how they’re handled. One of the most significant differences is how the deceased’s wishes for their estate (or guardianship of minor children) is–or isn’t–handled. Read on to learn more.

What Is the Difference Between an Intestate Estate and an Estate with a Will When it Comes to Probate?

Essentially, the same thing happens when an intestate estate goes through probate as when an estate with a will does: The assets of the estate are distributed after any outstanding debts are resolved, and if there are minor children to inherit from the decedent’s estate, a guardian is appointed.

However, an estate with a will has specific instructions drawn up by the deceased detailing how they want their assets to be distributed. They have the ability to include or exclude anyone they wish. They can also give assets to people who aren’t family members or to organizations such as nonprofits. A will can also specify who should be appointed legal guardian to any minors that have loss their parent or parents.

In contrast, the probate court will distribute an Georgia intestate estate following the order of succession which automatically only involves family members. No friends or organizations will receive any of the estate. If there are no surviving family members, the state of Georgia takes the assets.

Without a will, any minor children of the decedent will be assigned a guardian by the probate court. That may or may not be someone the deceased would have chosen themselves.

What Is Georgia’s Intestate Succession Order?

Georgia has strictly defined how an intestate estate is distributed. These are the family members who are eligible in order of eligibility.

  • Spouse. If there is a surviving spouse and no children, the spouse receives all the assets.
  • Children. If there are surviving children but no spouse, the children receive the assets, and if there are more than one, the assets are divided equally among them.
  • Spouse and children. If both the spouse and children are living, the assets will be divided among them, with the amounts allotted to each varying based on the number of children.  The spouse will be awarded no less than one-third (⅓). 
  • Parents. If there are no surviving children or spouses, the deceased’s parents (if still alive) would receive the assets.
  • Siblings. If all the above family members are deceased or nonexistent, any surviving siblings of the deceased will receive the assets.
  • If none of the above are available, the court will look for surviving aunts or uncles, cousins, nieces or nephews, or grandparents. 
  • If no family is still living or can’t be identified, the assets go to the state of Georgia.  

If someone has assets and wants to ensure those assets go to specific people or organizations after their death, or if they have minor children they want to protect through selecting guardianship themselves, working with an experienced estate planning attorney is vital for drafting a will and/or Living Trust.

How Do the Courts Assign Guardianship to a Surviving Minor Child When There’s no Will?

Just as the courts have a specific succession order to determine how assets are distributed when someone dies intestate, there is a detailed order of who will be considered to become the guardian of a child.

  • If the child is at least 14 years old, the court may ask whom they would like to have as guardian, and if their choice appears to be in the child’s best interests, that person may be assigned if they also consent to serving as the child’s guardian.
  • The court will look for the nearest adult relatives if the child is under 14 or has no opinion.
  • If no adult relatives are available, the court will look for adults who are relatives of the child through marriage.
  • If the deceased didn’t leave a will but did leave something in writing naming someone as guardian, that may be accepted. 
  • Finally, the court may look for an adult who has provided support or shelter for the child in the past. 

Are There Any Assets that Aren’t Affected by Someone Dying Intestate?

Yes. There are several situations in which someone dying without a will can still legally designate how certain assets should be distributed. 

  • Property owned jointly with someone else with rights of survivorship. For example, if spouses own a house together with rights of survivorship and it’s in both their names, full ownership will transfer to the surviving spouse and allude probate.
  • Payable-on-death (POD) or transfer-on-death (TOD) bank accounts or securities. These accounts are set up to name a beneficiary who will receive the assets when the account owner dies. 
  • Life insurance. Life insurance policies specify beneficiaries, and those are legally binding. However, this is only true if there is at least one (1) living, adult beneficiary listed with the insurance company. 
  • Retirement accounts. These usually have beneficiaries as well. It is always a good idea to make sure your beneficiary forms are complete and updated regularly. 
  • Living trusts. Any assets that have been transferred into a living trust will bypass probate and go to the beneficiary named in the trust. 

What Should I Do if I Want to Draft a Will?

Call Lunn Law LLC as soon as possible at 770-762-4628 to set up an assessment. Our team of experienced, knowledgeable estate planning attorneys can help guide you through determining how your assets should be distributed and the best way to set up a will to ensure that distribution is honored. We can also help you specify guardianship for minor children. There are many tools in the estate planning toolbox, and depending on your estate, we can also walk you through additional options, such as trusts.