II. Georgia Inestacy Laws: Rules of Descent and Distribution

Question 1

When do inestacy issues arise?

Answer 1

1. Decedent dies without a will or with an invalid will
2. Decedent dies with a will that disposes only of a porition of the property
3. Dies with a will in which a gift of the residuary estate fails and there are not other beneficiaries (lapse)
4. Decedent directs to use inestacy laws in will
5. When court is trying to determine standing to contest will.

Question 2

Inestate Share of Estate Assets where there is a surviving spouse and a surviving children?

Answer 2

• Assets go equally to surviving spouse and lineal decendants
  
  • Surviving Spouse must receive at least 1/3 of the estate
  • Remaining share divided equally among surviving children

Question 3

Inestate Share of Estate Assets when there is only a surviving spouse

Answer 3

When there is only a surviving spouse, the spouse takes the entire estate

Question 4

Inestate share where no surviving spouse but there are surviving lineal descendants

Answer 4

Descendents receive it per capita and per stirpes (meaning three children receive 1/3 of the share; grandchildren would receive out of that 1/3 share)

Question 5

Inestate share with no surviving spouse or lineal decednents

Answer 5

Goes to, in heirarchy, 1) parents; 2) siblings and their issue per capita and per stirpes unless the surviving siblings have all died which gives their issue it all equally

Question 6

Inestacy Rights of non-marital children

Answer 6

• May always inherit from mother unless parental rights have been terminated
• Child in wedlock from biological father if:
  
  • court order recognizes paternity
  • if parents later married, automatically legitimate
  • during child’s lifetime, father signed sworn affidavit attesting paternity or willingly signed birth certificate
  • clear and convincing evidence that the child is the child of the father
  • genetic testing with rebuttable presumption

Question 7

Inestacy Rights of Adopted Children

Answer 7

• If adopted, full inheritance rights
• Adoption terminates rights with biological parent
• Equitable Adoption (see next note)
• Included in class gifts UNLESS they’re adopted out of the class gift and not specifically named

Question 8

Equitable/Virtual Adoption

Answer 8

Occurs where there is an unpreformed contract to adopt. (e.g. Begun proceedings but died during the time)

Mere presence of de facto relationship not enough

must have agreements between the parents or guardian and the one who wishes to adopt.

Question 9

Advancements

Answer 9

Transfer to prosepective heair is treated as n advance payment of the intestate share only if there is a w_ritten acknolwedgmen_t that it is intended to be an advancement.

Must be signed by the transferor w/in 30 days or by the transferee at any time.

Determined by adding to the deedent’s actual estate, the value of the advancement at the time it was made.

Ademption by satisfaction for testate estates.