Heir Rights (GA)
As an heir, you likely have questions about the inheritance process in GA, and your rights.
Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).
Rights Under GA Probate
Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.
However, GA estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.
Your rights as an heir include:
- Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
- Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
- GA Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see GA Family Entitlement details for your state).
- Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
- Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
- Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.
Additional considerations:
- Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See GA Rules of Inheritance for details.
- Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
- Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
- Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.
GA Small Estate Rights
Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.
Probate of a Georgia estate may not be required if there is no will, and is not required in any case if the estate contains only assets exempt from probate.
No Administration Necessary
In Georgia, if there is no will and the heirs agree on a distribution plan, you can ask the court to rule that no estate administration is necessary, and to issue an order that all estate assets should be distributed according to the submitted plan.
Requirements
For the court to find that no administration in necessary, all of the following must be true:
- There is no will
- No executor has been appointed
- All heirs agree on a distribution plan for the estate (heirs are determined by family relationship; see GA Code § 53-2-1)
- Any known creditors agree to the plan
Process
In Georgia, each county has a local probate court. If you are using EstateExec and you enter the decedent's county of legal residence on the Decedent tab, you will see a direct link to the appropriate court here, usually with more detailed information about the court than the limited search link in the preceding sentence.
To have the court issue a No Administration Necessary order, an heir must submit a Petition for Order Declaring No Administration is Necessary (Form GPCSF-9) to the appropriate court. The petition must contain:
- Name and address of the decedent
- Name, address, and ages of the heirs
- A copy of the death certificate
- A statement that there are no creditors, or that any known creditors have consented to this plan or will be sent notice of this petition (see GA Code § 53-11-3 for instructions)
- A detailed list of estate assets
- A notarized distribution plan signed by all the heirs
If the estate contains any property subject to a lien (such as a mortgage), then the consent of the lien-holder must be included as well, or the lien-holder must be notified of the petition as per above.
Once the court approves a petition, it will issue orders to effect the submitted distribution plan.
See GA Code § 53-2-40 for statute details.
Deposit Affidavit
Alternatively, if there is no will and a given financial institution (such as a bank) holds up to $15K for a decedent, immediate family members (or the funeral home) can request to have those funds directly distributed to themselves.
Requirements
To use this approach, there must be no will, and the requester must be related to decedent in the following way:
- Spouse
- If there is no spouse, then to the children equally
- If there are no children, then to the father and mother equally
- If there are no parents, then to the siblings equally
If more than 45 days have passed since the death, and no other claims on the funds have been made, creditors for the funeral or expenses from the last illness may submit such a claim.
If these funds are the only assets of the estate, the estate may not require any probate-related proceedings at all. When determining estate contents, do not include assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To obtain rightful possession of such funds, submit a Financial Institution Statutory Affidavit to the financial institution holding the funds (or create your own – see GA Code § 7-1-239 (e) for the required format).
Note under the law, payment by the financial insitution under these terms is "authorized", not "required". Some financial institutions may refuse to honor such a request, and require official probate anyway.
See GA Code § 7-1-239.
No Small Estate General Affidavit
Many people ask about using a small estate affidavit for assets other than "small" bank accounts, but Georgia does not support such an affidavit. You must use one of the above methods (or full probate) for handling small estates in Georgia.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any GA Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you are still entitled to Executor Compensation in GA, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so you should arrange to have all debts resolved before distributing assets. In fact, if any creditor objects to a Petition for Order Declaring No Administration is Necessary, the judge will not allow the simplified probate procedure to move forward. Consequently, any submitted distribution plan should include details on how all debts will be resolved. After submitting a Petition for Order Declaring No Administration is Necessary, any known creditor who has not already agreed to the petition should be notified of the petition (see GA Code § 53-11-3).
When using this simplified procedure, it is NOT necessary to publish a notice to creditors as described in Finding Estate Debts in GA, but doing so can better protect the heirs from previously unknown creditors, who would normally have the right to sue heirs for the value of any distributions received.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Estate Debts
Finally, note that as an heir, you are NOT responsible for paying the debts of the GA estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.
If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.
Additional Information
For more information about inheritances in general, see EstateExec Heir Guide.
In case you're interested, heir rights in other states can be found here:
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