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Transfer Of Property After Death Without Will In Georgia

Transfer Of Property After Death Without Will In Georgia

How do you go about the transfer of property after death without a will in Georgia?

In this article, you’ll learn about:

  • how the government determines how your property gets distributed
  • surviving spouse and child’s rights to property
  • types of property that avoid probate
  • how to transfer property after death without a will
  • the tax issues you might come up against

Let’s dig in.

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Transfer Of Property After Death Without Will In Georgia

Let’s talk about the transfer of property after death without a will in Georgia. 

Georgia Intestacy Laws

Let’s say someone dies without a will in Georgia. 

Their estate gets distributed per Georgia’s intestate succession laws. 

These laws provide a set of rules for the distribution of the deceased’s assets. 

It’s important to understand these inheritance laws.

As they determine who inherits the property, and in what order.

The Georgia intestacy laws are based on the principle of “per stirpes” distribution. 

This means that the property is divided equally among the children of the deceased.

But, let’s say a child has predeceased the deceased.

Then, their share is passed down to their own children (the deceased’s grandchildren).

The order of distribution under the Georgia intestacy laws is as follows:

  1. If the deceased was married and had no children or grandchildren, the surviving spouse inherits all of the property.
  2. If the deceased was married and had children or grandchildren from the same marriage, the spouse inherits one-third of the estate and the children or grandchildren inherit the remaining two-thirds.
  3. If the deceased was married and had children or grandchildren from a previous marriage, the spouse inherits one-third of the estate, and the children or grandchildren from the previous marriage inherit the remaining two-thirds.
  4. If the deceased was not married but had children or grandchildren, the property is divided equally among the children or grandchildren.
  5. If the deceased had no spouse, children or grandchildren, the property is distributed among the deceased’s parents or their surviving parent.
  6. If the deceased had no surviving spouse, children, grandchildren, or parents, the property is divided among the deceased’s siblings or their children (nieces and nephews).
  7. If the deceased had no surviving spouse, children, grandchildren, parents, siblings, or nieces and nephews, the property is distributed among the deceased’s grandparents or their descendants (aunts and uncles).

Surviving Spouse Rights

In Georgia, a surviving spouse has various rights and protections under state law. 

Some of the surviving spouse’s rights include:

  • Intestate Share: If the deceased dies without a valid will, the surviving spouse receives a share of the estate. The share depends on whether the deceased had children.
  • Year’s Support: The surviving spouse can petition for a year’s support, a financial allowance to provide for their needs for one year after the deceased’s death.
  • Homestead Exemption: A surviving spouse is entitled to a homestead exemption, protecting a portion of the family home’s value from creditors.
  • Exempt Property: The surviving spouse is entitled to certain personal property from the estate, up to a specific value.
  • Pretermitted Spouse: If the deceased spouse’s will predates the marriage and doesn’t provide for the surviving spouse, they may be entitled to a share of the estate.
  • Social Security, Retirement, And Insurance Benefits: The surviving spouse may also be entitled to benefits based on the deceased spouse’s work and financial history. These accounts will go straight to the beneficiary and bypass probate.

Surviving Child Rights

In Georgia, surviving children have various rights, including:

  1. Intestate Share: If a parent dies without a valid will, surviving children are entitled to a share of the estate, depending on the number of children and the presence of a surviving spouse.
  2. Testate Share: If a parent dies with a will, the children’s inheritance is determined by the will’s provisions.
  3. Omitted Child: A child born or adopted after a parent’s will execution, and not provided for, may be entitled to a share of the estate as if the parent died intestate.
  4. Year’s Support: Surviving children may be eligible for a year’s support, a financial allowance for their needs for one year after the parent’s death.
  5. Social Security Benefits: Eligible surviving children may receive Social Security survivor benefits based on the deceased parent’s work history.
  6. Guardianship: The court may appoint a guardian for minor children if a deceased parent hasn’t named one in their will.

Types Of Property That Avoids Probate

Several types of property can avoid probate in Georgia. 

This helps you transfer assets more quickly and efficiently to beneficiaries. 

Here are the types of properties that avoid probate:

  1. Jointly Held Property With Rights Of Survivorship: Real estate, bank accounts, or other assets owned jointly with rights of survivorship automatically pass to the surviving co-owner(s) upon one owner’s death without going through probate.
  2. Payable-On-Death (POD) Accounts: Bank accounts, CDs, or other financial accounts designated as payable-on-death allow the named beneficiary to access the funds upon the account holder’s death without probate.
  3. Transfer-On-Death (TOD) Accounts: Similar to POD accounts, TOD accounts apply to securities, such as stocks and bonds. The named beneficiary inherits the securities without going through probate.
  4. Transfer-On-Death Deeds: In some jurisdictions, real estate can be transferred via a transfer-on-death deed, allowing the named beneficiary to inherit the property without probate.
  5. Life Insurance Policies And Retirement Accounts: Proceeds from life insurance policies and retirement accounts (i.e., IRAs, 401(k)s) with named beneficiaries typically pass directly to the beneficiaries without probate.
  6. Assets Held In Trust: Assets placed in a living trust or another type of trust are managed by a trustee and generally bypass probate. The trustee can distribute the assets to beneficiaries according to the trust’s terms without court involvement.
  7. Gifts: Assets gifted before death are not part of the deceased person’s estate and do not go through probate.

How To Transfer Property After Death Without Will In Georgia

When you die without a will, your estate gets distributed via intestate. 

These are the steps to transfer property after death without a will:

  1. Filing A Petition: An interested party files a petition for administration with the appropriate probate court, requesting the appointment of an administrator to manage the estate.
  2. Administrator Appointment: The court appoints an administrator, who may be required to post a bond (an insurance policy). Reach out to us for help with this.
  3. Inventory And Appraisal: The administrator identifies and inventories the deceased’s assets and may hire appraisers to determine their value.
  4. Notice To Creditors: The administrator notifies creditors, allowing them a specific period to submit claims for debts owed by the deceased.
  5. Payment Of Debts And Expenses: The administrator pays the deceased’s debts, funeral expenses, and estate administration expenses from the estate’s assets, following a priority order if assets are insufficient.
  6. Distribution Of Assets: After debts and expenses are paid, the administrator distributes the remaining assets according to Georgia’s intestate succession laws.
  7. Closing The Estate: The administrator files a final accounting with the court. If approved, the administrator is released from their duties, and the estate is closed.

Read More: How Much Time After Selling A House Do You Have To Buy A House To Avoid The Tax Penalty?

What Does An Executor Do?

When someone dies without a will in Georgia, an executor is not appointed. 

The court appoints an administrator to manage and settle the deceased person’s estate. 

The role of an administrator is similar to that of an executor.

They distribute assets according to Georgia’s intestate succession laws.

Compared to an executor of following the deceased person’s will.

Read More: How Long Do You Have To Transfer Property After Death?

Appointment Of Executor Or Administrator

When someone dies without a will in Georgia, the court appoints an administrator of the estate.

The administrator manages and settles the deceased person’s estate. 

This includes tasks such as:

  • identifying and valuing assets
  • paying debts and expenses, distributing assets to heirs
  • providing a final accounting to the court

Tax Implications For Transferring Property After Death Without Will

What are the tax implications when transferring property after death without a will? 

Here are some of the tax implications you can expect:

  1. Estate Tax: The federal estate tax applies to the transfer of a deceased person’s assets, including property, upon their death. The federal estate tax exemption is $12.06 million per individual. Estates below this threshold generally do not owe federal estate tax. Georgia does not have a state estate tax.
  2. Inheritance Tax: Inheritance tax is levied on the recipient of the inherited property. Georgia does not have an inheritance tax.
  3. Step-Up In Basis: For federal income tax purposes, inherited property generally receives a “step-up” in basis to its fair market value at the time of the decedent’s death. This means that when the beneficiary eventually sells the property, the taxable gain or loss is calculated based on the difference between the sale price and the stepped-up basis, potentially reducing capital gains tax liability.
  4. Property Taxes: Inherited property may be subject to local property taxes, which are based on the property’s assessed value and local tax rates. Transferring property after death does not necessarily change the property tax liability, but the assessed value may be reassessed upon the transfer.

Transferring Property After Death Without A Will

Fill out the form below if you:

  • need help with the probate process
  • want to set up your estate plan to avoid intestate succession

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