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Estates and Probate Attorney

GEORGIA PROBATE LAW
THE RIGHTFUL HEIRS OR BENEFICIARIES

Presented by
Sharon L. Rowen, Esq.
Rowen & Klonoski, P.C.
ATTORNEYS AT LAW
133 Peachtree Street, Ste. 4800
Atlanta, Georgia 30303
(404) 523 2844

Atlanta Attorney Sharon Rowen is a frequent speaker at Georgia Continuing Legal Education Seminars for Georgia Estate and Probate lawyers. The following is a small part of a probate law paper written for the September, 2004 National Business Institute Probate Lawyer Seminar in Atlanta, Georgia. Though intended for the practicing Georgia probate attorney, non lawyers may find answers to some basic questions regarding Georgia probate law on heirs and beneficiaries.

Links:

Probate and Estate Home Page
Simple Will Questionnaire
Georgia Probate and Estate Checklist
For the Georgia Probate Attorney
Out of the State of Georgia Probate Issues
Out of the State of Georgia Decedent with Property in Georgia
2006 Contingency Fee Contracts with Minor Clients

The rules of inheritance when a decedent dies without a will are set forth in OCGA 53-2-1 et seq. The rules can be summarized as follows:

__ 1. If there is a spouse and no children, the spouse is the sole heir.
__ 2. If there are children, the spouse shares equally with the children, per stirpes, but the spouse's portion shall not be less than a one third share.
__ 3. Children of the decedent, per stirpes.
__ 4. Parents of the decedent.
__ 5. Siblings of the decedent, per stirpes.
__ 6. If no siblings survive, nieces and nephews, per stirpes.
__ 7. Grandparents.
__ 8. Uncles and aunts per stirpes.
__ 9. If no uncles or aunts survive, then first cousins who survive the decedent.
__10.The more remote degrees of kinship are determined by a formula set out in the code section.OCGA 53 2 3 sets forth the rules for inheritance by children born out of wedlock. In short, a child born out of wedlock inherits from the mother, but only inherits from the father if one of a list of conditions are met, or if there is other clear and convincing evidence that the child is the child of the father. Conversely, OCGA 53 2 4 sets forth the rules for inheritance from children born out of wedlock. The identity or interest of any heir may be resolved judicially by the court, after the filing of a petition by any interested party.

Other factors which may be relevant in determination of heirs or beneficiaries:

__ 1. It must be determined that the will that is found has not been changed or revoked by the testator or by operation of law prior to the testator's death. A will may be changed or revoked by the testator at any time prior to the testator's death. OCGA 53-4-40.

__ 2. A will is revoked as a matter of law by the subsequent marriage of the testator, by the birth of a child to the testator, including a posthumous child born within 10 months of the testator's death, or the adoption of a child by the testator subsequent to the making of a will in which no provision is made in contemplation of such event. OCGA 53-4-48.

__ 3. All provisions of a will made prior to a testator's divorce in which no provision is made in contemplation of such an event shall take effect as if the former spouse had predeceased the testator. However, if the testator divorces and then remarries the same spouse, then the revoked will is revived. OCGA 53-4-55.

NOTICE TO HEIRS AND BENEFICIARIES

OCGA 53-5-22(b) lists the notice requirements for probate in solemn form. This includes notice to:

Each beneficiary;

Who has a present interest, including but not limited to a vested remainder interest but not including trust beneficiaries where there is a trustee; and

Whose identity and whereabouts are known or may be determined by reasonable diligence;

The duly acting guardian of each individual beneficiary with a present interest or power,

other than a mere trust beneficiary, who is not sui juris; and Each trustee.

These notice requirements may, under certain conditions and upon motion, be modified by the probate court. Notice of a petition for letters of administration shall be mailed by first class mail to each heir with a known address at least 13 days prior to the date on or before which any objection is required to be filed.

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