Despite the ease and relatively low cost to make a Will, many people still do not have a Will. Some may think they are too young. Others may think that they are in good health; or, that their heirs will just divide their property fairly for them. Unfortunately, the truth is more complicated. You may be young and in great health, but like a fire drill, everyone at least needs an emergency plan, just in case.

When you die without a Will, you die “intestate” and when you die intestate in Georgia, the State of Georgia will essentially make a Will for you (based on the laws of Georgia). Georgia will divide your property among your “heirs” as that term is defined under Georgia law.

At first glance, it appears that dying without a Will is no different from dying with a Will: it gets your property into the hands of your heirs and keeps it out of the hands of the state. The drawback, however, is you have no say as to who gets what. You don’t pick your heirs! Georgia does it for you.

The examples below will give an idea of what can happen if you die without a Will. In addition, if you want to give anything specific to a particular heir (like your wedding ring), you need a Will because Georgia only looks at your whole estate in distribution and does not look at the individual items that make up your estate.

Let’s start with a simple example. Suppose Tim is married with three young children. If Tim dies without a Will, he probably assumes that his wife will get all of his property. In Georgia, however, Tim’s wife will NOT get all of his property. Even if the children are too young to handle property on their own, Georgia law says Tim’s wife can take no more than 1/3 of his estate. The rest is divided evenly among his children and now, Tim’s children own a part of the family home. And even worse, Georgia law says that minor children cannot own property. So, a custodian will have to be appointed to care for the property until Tim’s children reach majority age. Tim’s family will have to go to Court and incur legal fees and court costs to have a custodian appointed and those costs will probably be more than if Tim would have made a Will in the first place.

Now let’s suppose that Tim dies without any wife or children. Let’s suppose further that Tim has always been close with his brother, Tom, but is estranged from his parents. In Georgia, Tim’s parents are entitled to his estate before Tom. Even though Tim may not want his estate to go to his parents, he has no choice because Georgia law says that his parents are his closest heirs.

Using the above example, let’s suppose Tim has two other siblings, Joe and Jane. Even if Tim would not want Joe and Jane to take as much as his favorite brother, Tom, Georgia law forces the estate to be divided equally among the siblings.

The possible horror stories can go on forever, but the fact is that intestacy can create uncomfortable and undesirable situations. Life and death are unpredictable, and while you may be young and healthy now, a Will gives you peace of mind that you have a plan that works and meets your wishes, just in case. Kind of like a fire drill.


Patrick R. Norris, Norris Legal Atlanta Law Group, LLC

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