General DefinitionA decedent's intestate estate is defined as any part of the estate not effectively disposed of by a valid will.
Order of DistributionWhen a decedent dies without a will his/her estate is distributed to relatives in the following order:
- If the decedent is survived by a spouse and no descendant(s), the spouse receives 100% of the estate;
- If the decedent is survived a spouse and by children or other descendants, the spouse will share equally with the children, with the descendants of any deceased child taking that child's share, per stirpes. However, the surviving spouse must receive a minimum of 1/3 of the estate;
- If the decedent is not married at the time of his/her death but has children, the children share the estate equally, with the descendants of any deceased child taking, per stirpes, the share that child would have taken if in life;
- If the decedent had no children or other living decedent, his/her parents share the estate equally;
- If the decedent has no living descendants and no living parents, the siblings of the decedent who survive the decedent share the estate equally, with the descendants of any deceased sibling taking, per stirpes, the share that sibling would have taken if in life;
- If no sibling survives the decedent, the nieces and nephews of the decedent take the estate in equal shares, with the descendants of any deceased niece or nephew taking, per stirpes, the share that niece or nephew would have taken if in life.
- If there are no surviving parents, siblings, spouse children or grandchildren of the decedent, the grandparents who survive the decedent share the estate equally;
- If no grandparent survives the living uncles and aunts of the decedent share the estate equally, with the children of any deceased uncle or aunt taking, per stirpes, the share that uncle or aunt would have taken if in life; provided, however, if no uncle or aunt of the decedent survives the decedent, the first cousins who survive the decedent share the estate equally. Sec. 53-2-1(c).
If no heirs come forward to claim any part of or all of the estate within four years of the issuance of letters of administration to the personal representative, the unclaimed estate will escheat to the state and be distributed to the county board of education where the estate is located. Sec. 53-2-51.
Common Law or Community PropertyGeorgia is a common law property state.
CapacityThe testator of a valid will must be at least 14 years of age and be of sound mind at the time of the drafting. Sec. 53-4-10. An insane or monomaniac may establish a will but only during a lucid moment. Sec. 53-4-11.
DraftingA will must be in writing and signed by the testator/testatrix. The will must be signed by two witnesses in the presence of the testator/testatrix. Sec. 53-4-20. The will must be signed by two witnesses in the presence of the testator/testatrix.
No particular form is necessary to constitute a will. To determine whether an instrument is a will, the test is the intention of the maker to be gathered from the whole instrument, read in light of the surrounding circumstances. If the intention is to convey a present interest, though the possession is postponed until after death, the instrument is not a will. If the intention is to convey an interest accruing and having effect only at death, the instrument is a will. Sec. 53-4-3.
BeneficiariesA beneficiary is any person, including a trust, who is named in a will to take an interest in real or personal property. Sec. 53-1-2.
ModificationsAn express revocation may be effected by any destruction or obliteration of the will done by the testator with an intent to revoke or by another at the testator's direction. The intent to revoke shall be presumed from the obliteration or cancellation of a material portion of the will, but such presumption may be overcome by a preponderance of the evidence. Sec. 53-4-44.
An express revocation may be effected by a subsequent will or other written instrument that is executed, subscribed, and attested with the same formality as required for a will. Sec. 53-4-42.
The marriage of a testator/testatrix, the total divorce or the birth of a child subsequent to making of a will in which no provision is made in contemplation of such an event revokes the will to the extent provided in the rest of this Code section. Sec. 53-4-48.
Naming of Personal RepresentativeThe court will accept a personal representative named by the decedent in his/her will. Sec. 53-6-10. However, if no one is named or the personal representative is disqualified from service or in the case of an intestate estate, the beneficiaries of an estate have the opportunity to unanimously select one. Sec. 53-6-14. If the decedent did not name a personal representative and the surviving beneficiaries are unable to unanimously nominate one, the court will appoint one in the following order of preference:
- The surviving spouse, unless an action for divorce was pending at the time of death;
- an heir or heir's or the person selected by the majority in interest of them;
- Any other eligible person;
- Any creditor of the estate; or
- The county administrator. Sec. 53-6-20.
After a hearing, the probate judge will issue letters to the personal representative. The letters allow the personal representative to administer the decedent's estate. A petition for letters of administration must be made in the county where the decedent was domiciled at death. Sec. 53-6-21(a). The petition must include the full name, the domicile, date of death of the decedent. The petition must also include the mailing address of the petitioner, the names, ages and addresses of heirs, stating their relationship to the decedent; and, in the event full particulars are lacking, the reasons for any omission. Sec. 53-6-21(b).
Submission of WillA person having possession of a will must file it with the probate court. Failure to do so may subject the person to charges of contempt resulting in fines and imprisonment until the will is delivered. Sec. 53-5-5.
NotificationsNotice of the petition must be mailed to each heir with a known address at least 30 days prior to the date which any objection is required to be filed. If there is any heir whose current address is unknown or any heir who is unknown, the notice must be published in the official newspaper of the county in which petition is filed once a week for four weeks prior to the week when any objection must be filed. Sec. 53-6-22.
InventoryOne of the personal representative's chief duties is to prepare an inventory of all the property of the decedent. The personal representative must file the inventory with the probate court and deliver a copy to the beneficiaries or heirs within six months after being named the personal representative. The inventory should state that it contains a true statement of all the property of the decedent within the knowledge of the personal representative. Sec. 53-7-30.
Family SupportGeorgia allows a surviving spouse one year's support. There is no right to a statutory or elective share. When a person dies and is survived by a spouse, minor children, both or either, the survivors are entitled to a year's support. Sec. 53-3-1. If the surviving spouse and/or minor children are provided for in the testator's/testatrix's will, he or she will have to make a decision to either accept the provisions of the will or claim the year's support. Sec. 53-3-3.
Debts and DistributionsAll of the property of the estate is available for the payment of claims against the estate. Claims will be paid in the following order:
- Year's support for the family;
- Funeral expenses;
- Necessary expenses of administration;
- Reasonable expenses of the decedent's last illness;
- Unpaid taxes;
- Judgments, secured interests and other liens created during life are paid according to their priority of lien.
- All other claims. Sec. 53-7-40.
The personal representative must publish a notice directed generally to all of the creditors of the estate to submit an account of outstanding debts owed them. Notice must be given within 60 days of the personal representative's qualification. The notice will be published once a week for four weeks in the official newspaper of the county in which the personal representative is qualified. Sec. 53-7-41.
Since July 1, 2014, Georgia has not imposed an estate tax. Sec. 48-12-1.
Income Tax Charitable Deductions and/or Credits
Georgia allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. Ga. Code Ann. §48-7-27(a)(1).
Georgia also allows a taxpayer a credit for donations of real property to be used for a qualified conservation purpose. The credit is limited to the lesser of $250,000 ($500,000 for corporations, $500,000 for partnerships) or 25% of the property's fair market value. Donors may carry forward any unused credit up to ten additional years from the year of the gift. Ga. Code Ann. §48-7-29.12.
In addition, Georgia's rural hospital tax credit allows taxpayers to receive a state income tax credit for gifts to qualified rural hospital organizations. Georgia residents can deduct 90% of the contributed amount with a $5,000 cap for individual filers and a $10,000 cap for married couples. Effective July 1, 2018, the amount of the credit increased from 90% of the contributed amount to 100% of the contributed amount. Ga. Code Ann. §48-7-29.20.
Gift Annuity Requirements
Georgia, a "notification" state, regulates the issuance of charitable gift annuities under the Official Code of Georgia Secs. 33-58-1 through 33-58-6.
To qualify, charities must have been in continuous operation for at least three years and has at least $300,000 in unrestricted assets (cash, cash equivalents or publicly traded securities exclusive of the assets funding the gift annuity agreement).
Notification ProcessCharities must notify the Georgia Insurance Department in writing on the date it enters into its first qualified gift annuity in order to comply with state law. For noncompliance, the Code permits Georgia to impose fines up to $1,000 per gift agreement. The notice to Commissioner shall be signed by an officer or director of the organization, identify the organization, certify that the organization is a charitable organization and that the gift annuities issued by the organization are qualified charitable gift annuities.
Disclosure LanguageThe following state-required disclosure language (in a separate paragraph, print size no smaller than that employed in the annuity agreement generally) must be included in all gift annuity agreements:
"A qualified gift annuity is not insurance under the law of this state and is not subject to regulation by the Commissioner of Insurance or protected by an insurance guaranty association."
Reserve RequirementsGeorgia does not require an issuing charity to hold any amount in reserve.
Annual Filing RequirementsOnce notification is given to the state, the organization must submit a copy of its audited financial statement when it is available.
State Contact InformationTammy Brewster
Division of Insurance and Financial Oversight
Office of Insurance and Fire Safety Commissioner
West Tower, Floyd Building, Suite 604
2 Martin Luther King, Jr. Drive
Atlanta, Georgia 30334
Phone: (404) 656-7556
E-mail: [email protected]