1. Intestate Succession

Question 1

What happens if property of the estate does not pass under a will?

Answer 1

Estate property not covered by a will is distributed according to Georgia’s intestacy laws.

Question 2

What is a testacy proceeding?

Answer 2

A testacy proceeding refers to a proceeding to establish a will or determine intestacy.

Question 3

When is intestacy complete?

Answer 3

Intestacy is total if the person who dies either:
1. does NOT make a will; or
2. makes a will that is invalid in its entirety.

Question 4

When is intestacy partial?

Answer 4

Intestacy is partial when the testator makes a will, but part of the property in the estate does not pass under the will.

Question 5

What happens when any part of the estate of a decedent is not effectively disposed of by will?

Answer 5

Any part of the estate of a decedent not effectively disposed of by will passes to the heirs as prescribed by intestacy laws.

Question 6

What is a per stirpes distribution?

Answer 6

Per stirpes distribution ensures that if a beneficiary, such as a child, predeceases the testator, that beneficiary’s share of the estate passes equally to their descendants.

Question 7

What happens if a decedent is survived by a spouse but not by any child or other descendant?

Answer 7

The spouse is the sole heir.

Question 8

What happens if a decedent is survived by a child or other descendant as well as by a spouse?

Answer 8

The spouse shares equally with the children, with the deceased child’s descendants taking that child’s share per stirpes.

• The spouse’s share must not be less than one-third.

Question 9

What if the decedent is survived by a spouse and one child?

Answer 9

The spouse gets one-half of the estate.

Question 10

What if the decedent is survived by a spouse and two children?

Answer 10

The spouse receives one-third of the estate and the two children share the remaining two-thirds.

Question 11

What if the decedent is survived by a spouse and three children?

Answer 11

The spouse still gets one-third and the three children split the remaining two-thirds.

Question 12

What if the decedent is survived by a spouse and two grandchildren and predeceased by a child who is the father of two grandchildren?

Answer 12

The spouse will receive one-half and each grandchild will receive one-fourth. The grandchildren take the predeceased child’s share per stirpes.

Question 13

Can a surviving spouse who is under the age of 18 take his share of the deceased spouse’s intestate estate?

Answer 13

Yes, a surviving spouse who is under the age of 18 can take their share of the deceased spouse’s intestate estate in his own right, without the appointment of a guardian.

Question 14

If the decedent is not survived by a spouse, the heirs are________

Answer 14

the closest surviving relatives.

Question 15

Who is the first degree of the decedent?

Answer 15

Children of the decedent are in the first degree.

Children of the decedent inherit equally. Descendants of any deceased child inherit that child’s share per stirpes.

Question 16

What do the grandchildren and more remote descendants take?

Answer 16

Grandchildren and more remote descendants always take per stirpes, even if there are no surviving children.

Question 17

Who is the second degree of the decedent?

Answer 17

Parents of the decedent are in the second degree. The parents inherit the entire estate equally.

Question 18

Who is the third degree of the decedent?

Answer 18

Siblings of the decedent are in the third degree.

Surviving siblings share the estate equally. Descendants of any deceased sibling inherit that sibling’s share per stirpes.

Question 19

What if no sibling survives the decedent?

Answer 19

The decedent’s surviving nieces and nephews take the estate in equal shares, with the descendants of any deceased niece or nephew taking, per stirpes.

Question 20

What if the only surviving sibling renounces his interest in the estate?

Answer 20

He is not deemed to have predeceased the decedent.

Question 21

Who is the fourth degree of the decedent?

Answer 21

Grandparents of the decedent are in the fourth degree. Grandparents share the entire estate equally.

Question 22

Who is the fifth degree of the decedent?

Answer 22

Uncles and aunts of the decedent are in the fifth degree.

Survivors share the estate equally. Children of any deceased uncle or aunt inherit their shares per stirpes.

Question 23

What if no uncle or aunt of the decedent survives?

Answer 23

The decedent’s first cousins who survive the decedent share the estate equally.

Question 24

Who is the sixth degree of the decedent?

Answer 24

If the decedent is not survived by anyone in the preceding degrees, more remote relatives are assigned a degree of kinship.

Question 25

What is Escheat?

Answer 25

If there is no spouse or other person to inherit under the statute, the property escheats (passes) to the state.

Question 26

What is the Georgia Anti-Escheat Provision for Intestacy?

Answer 26

When a married person dies intestate, and the surviving spouse then dies intestate(and without any ascertainable heirs) within six months, any “undistributed property” in the first deceased spouse’s estate will be distributed to those heirs of the first deceased spouse.

Question 27

What happens to an heir that kills the decedent for intestacy purposes?

Answer 27

An heir who feloniously kills or conspires to kill the decedent forfeits their inheritance under intestacy.

Question 28

Are the killer’s descendants precluded from taking from the decedent’s estate?

Answer 28

The killer’s descendants can inherit from the decedent but only up to the share the killer forfeited.

Question 29

What share do adopted children get through intestacy?

Answer 29

Georgia follows the transplantation theory regarding adopted children.

An adopted child loses inheritance rights from biological parents and gains the same rights as a child of the adoptive parents.

Question 30

Does an adoption by step-parent cut off the child’s inheritance from their biological parent?

Answer 30

No, the rule that cuts off the child from the biological family does not apply when the adopting parent is the spouse of the biological parent(stepparent adoption).

Question 31

What if a biological parent of an adopted child dies without the parent-child relationship having been previously terminated?

Answer 31

The child’s inheritance rights from the deceased parent remain unaffected.

Question 32

What if the adopted person dies intestate?

Answer 32

If an adopted person dies intestate, their property is distributed as if they were born to the adopting parents.

Question 33

What is the share of half-blood relatives in intestacy?

Answer 33

Half-blood siblings inherit equally with whole-blood siblings and their descendants.

Question 34

What parent is the legitimate child of a child born out of wedlock for purposes of intestacy?

Answer 34

A child born out of wedlock is the legitimate child of the mother.

Question 35

How can a child born out of wedlock inherit from the father for purposes of intestacy?

Answer 35

A child born out of wedlock may inherit if:
1. A court order declares the child legitimate
2. A court order establishes paternity
3. The father signs a sworn statement affirming the parent-child relationship
4. The father signs the child’s birth certificate
5. Clear and convincing evidence proves paternity and the father’s intent for inheritance
6. DNA shows a 97% match.

Question 36

Is a child born out of wedlock treated as having been born in wedlock where the parents subsequently marry?

Answer 36

Yes, a child born out of wedlock is considered legitimate if the parents marry later.

Question 37

Can a child who is born after the decedent’s death share in the estate?

Answer 37

Yes, if conceived before but born within ten months after the decedent’s death and survives at least 120 hours after birth.

Question 38

How is a person conceived through artificial insemination considered to be the parent’s child for the inheritance purposes?

Answer 38

A child conceived via artificial insemination is considered legitimate for inheritance if both spouses consented in writing to the use of artificial insemination.

Question 39

What is an advancement?

Answer 39

An advancement is a gift given to a prospective heir or beneficiary during the transferor’s lifetime, not through a will.

Question 40

What is the declaration of intent required to be considered an advancement?

Answer 40

A lifetime transfer is considered an advancement if:
1. The will deducts it from the beneficiary’s share;
2. The transferor declares it inwriting within 30 days of making the transfer;
3. The recipient acknowledges it in a writing at any time.

Question 41

What happens when there is no declaration of acknowledgment?

Answer 41

Without such a declaration or acknowledgment, the transfer will not be charged against the heir’s or beneficiary’s share of the decedent’s estate.

Question 42

What is the effect of an advancement?

Answer 42

An advancement reduces a testamentary gift by its value at the testator’s death, unless the will or a written declaration states otherwise.

Question 43

What is Hotchpot?

Answer 43

In Georgia, an advancement’s value is added to the estate, shares are recalculated, and then deducted from the recipient’s share.

Question 44

What happens when the value of the advancement exceeds the recipient’s intestate share?

Answer 44

If the advancement exceeds the recipient’s share, they receive nothing further and don’t refund the excess.

Question 45

What happens if the advancement is less than the advancee’s intestate share?

Answer 45

If the advancement is less than the advancee’s intestate share, the advancee is entitled to receive the difference.

Question 46

What happens if the money or other property given by the decedent to the heir creates a debt?

Answer 46

An heir must repay any debt to the decedent, regardless of their intestate share size.

Question 47

What is the Uniform Simultaneous Death Act?

Answer 47

The Act presumes simultaneous death when the order is uncertain, treating each person’s property as if they survived. This means neither individual’s estate inherits from the other; instead, their assets are distributed directly to their respective heirs or beneficiaries.