One of the main questions that arises during any Estate Planning session is how to control how your assets move to your heirs after your death. The chief way to accomplish this is to have a comprehensive Will in place as soon as possible. A Will tells the Probate court which parties you want to inherit your property after your death, and if this Will meets the appropriate legal standards, the court cannot deviate from this document.
However, situations do arise where a court will apply the state’s Intestacy laws during Estate Distribution in Georgia. These laws assign property to surviving family members without regard for your wishes or how this may affect an asset’s value. Because of this, it is important to speak with our knowledgeable attorneys at Nelson Elder Care Law.
The Probate courts have the final say over which heirs receive what property after a person’s death. However, the court does not have the power to make its own decisions. Instead, the court acts as an intermediary in two ways.
A comprehensive and legally correct Will is the most direct way to retain control over the Probate process. To have the best chance of effectiveness, a Will must meet the construction guidelines present in the Official Code of Georgia Annotated § 53-4-20. This states that a Will is presumably genuine if it contains the signature of the testator (you) and those of two witnesses who were present at the execution.
Courts will also entertain challenges to a Will’s validity brought by interested parties. These are generally those who would stand to inherit property if the Will did not exist. They may allege that you lacked the mental capacity to create a Will or that the document is fraudulent. Once a Georgia court authenticates a Will, the Distribution of Estate assets must follow the terms of that document.
The Intestacy statute determines the property rights of heirs should you pass away without a Will. This could occur if you never created a Will, the Will is incomplete, or the Will is deemed invalid.
Under O.C.G.A. § 53-2-1, your spouse and children have the first right to claim property in cases of Intestacy. However, if you do not have a spouse or children then others may be able to stake a claim.
While the Probate court can determine the property rights of heirs, only an executor of an Estate has the legal authority to distribute assets. While you can nominate an executor in your Will, courts can also act to place a willing participant in this role.
An executor takes temporary control of all your assets in anticipation of Estate Distribution in Georgia. They will first distribute assets to authentic creditors. Once this is complete, they will send out the remainder of assets to the heirs named in the Will or those in line to inherit after an application of the Intestacy rules. Every step of the way, the court oversees this distribution.
Ideally, the Distribution of an Estate after a person’s death will proceed according to the terms of a Will. As long as a Will is the genuine product of a testator’s intent, the Probate court must order property distraction according to the terms of that document.
However, if a Will is incomplete or altogether absent, the court will apply the state’s Intestacy rules. Contact Nelson Elder Care Law today to discover more about the rules for Estate Distribution in Georgia.
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