if there is no will what is the order of priority for distribution of an estate?
Full Question:
In Georgia, if there is no will what is the order of priority for distribution of an estate? (Particular interest in real property.)
11/23/2007 |
Category: Wills and Estates |
State: Georgia |
#12739
Answer:
The following are Georgia statutes:
53-4-2. (Pre-1998 Probate Code)
The following rules shall determine who are the heirs at law of a
deceased person;
(1) Upon the death of the husband or wife without lineal descendants,
the surviving spouse is the sole heir and upon payment of that deceased
spouse's debts, if any, may take possession of the estate without
administration;
(2) If, upon the death of the husband or wife, there are children or
representatives of deceased children, the surviving spouse shall have a
child's part, unless the shares exceed four in number, in which case the
surviving spouse shall have one-fourth part of the estate and the
children shall have three-fourths' part of the estate; and the surviving
spouse and children shall take per capita but the descendants of the
children shall take per stirpes. In any case in which a surviving spouse
is entitled to the year's support and maintenance under Chapter 5 of this
title, the amount of such support and maintenance shall not be includable
in computing the amount to which that surviving spouse is entitled under
this paragraph. No election by the surviving spouse shall be necessary to
entitle that spouse to the portion of the estate allowed by this
paragraph, but that surviving spouse shall be entitled thereto as a matter
of law unless that spouse renounces such portion, in whole or in part,
within nine months after the death of the other spouse;
(3) Whenever the husband or wife of a deceased person is under the age
of 18 years and entitled to a share in the estate of the deceased
husband or wife, he or she shall be entitled to take and hold such
share without the intervention of a guardian or other trustee;
(4) Children shall stand in the first degree from the intestate and
inherit equally all property of every description, accounting for
advancements as provided in Article 3 of this chapter. Posthumous
children shall stand upon the same footing with children in being upon
all questions of inheritance. The lineal descendants of children shall
stand in the place of their deceased parents, but in all cases of
inheritance from a lineal ancestor the distribution is per stirpes and
not per capita;
(5) Brothers and sisters of the intestate shall stand in the second
degree and shall inherit if there is no surviving spouse, child, or
representative of a child. The half blood, both on the paternal and
maternal side, shall inherit equally with the whole blood.
Brothers and sisters of the whole blood, brothers and sisters of the
half blood, and brothers and sisters adopted by a mutual parent of the
intestate shall stand in the same degree and inherit equally from each
other. The children or grandchildren of deceased brothers and sisters
shall represent and stand in the place of their deceased parents, but
there shall be no representation further than this among collaterals.
If all the brothers and sisters are dead at the time of death of the
intestate, then the distribution shall be between the nephews and
nieces per capita; and if any of the nephews and nieces are dead,
leaving children, distribution shall be made as though the nephews and
nieces were all alive, the children of the deceased nephew or niece
standing in the place of the parent;
(6) The father and mother inherit equally with brothers and sisters
and stand in the same degree;
(7) In all degrees more remote than those specified in paragraphs (1)
through (6) of this Code section, the paternal and maternal next of
kin shall stand on an equal footing;
(8) The grandfathers and grandmothers of the intestate shall stand
next in degree;
(9) Uncles and aunts shall stand next in degree, with the children of
any deceased uncle or aunt inheriting in the place of their parent;
(10) First cousins shall stand next in degree; and
(11) The more remote degrees of kinship shall be determined by
counting the steps from the claimant to the closest common ancestor
and from the ancestor to the intestate. The sum of the two chains
shall be the degree of kinship.
53-2-7. (Revised Probate Code of 1998)
(a) Upon the death of an intestate decedent who is the owner of any
interest in real property, the title to any such interest which survives
the intestate decedent shall vest immediately in the decedent's heirs at
law, subject to divestment by the appointment of an administrator of the
estate.
(b) The title to all other property owned by an intestate decedent
shall vest in the administrator of the estate for the benefit of the
decedent's heirs and creditors.
(c) Upon the appointment of an administrator, the title to any
interest in real property which survives the intestate decedent shall
vest in the administrator for the benefit of the heirs and creditors of
the decedent, and title to such property shall not revest in the heirs
until the administrator assents to such revesting. For purposes of this
Code section, the assent of the administrator shall be proved in the
manner set out in Code Section 53-8-15.
(d) Upon the appointment of an administrator, the right to the
possession of the whole estate is in the administrator, and, as long as
administration continues, the right to recover possession of the estate
from all other persons is solely in the administrator. The administrator
may recover possession of any part of the estate from the heirs at law or
purchasers from them; but, in order to recover real property, it is
necessary for the administrator to show, upon the trial, either that the
property which is the subject of the action has been in the
administrator's possession and without the administrator's consent is
held by the defendant at the time of bringing the action or that it is
necessary for the administrator to have possession for the purpose of
paying the debts, making a proper distribution, or for other purposes
provided for by law. An order for sale or distribution, granted by the
judge of the probate court after notice to the defendant, shall be
conclusive evidence of either fact.
(e) If an order has been entered under Code Section 53-2-41 that no
administration is necessary, or if the administrator has assented to the
vesting of title in the heirs, the heirs may take possession of the
property or may sue for possession of the property in their own right.
53-2-8. (Revised Probate Code of 1998)
(a) When the spouse of an intestate decedent dies intestate and
without ascertainable heirs within six months of the decedent's death,
any undistributed property of the decedent to which the spouse had
been entitled prior to the spouse's death shall not escheat but shall
be distributed to the heirs of the decedent who would have inherited
the property under the intestacy laws if the spouse had predeceased
the decedent.
(b) The nonexistence of heirs of the spouse may be determined by
publication as provided in Code Section 53-2-51. If no heir of the
spouse appears, the property, less the expenses of the proceedings to
determine the nonexistence of heirs, shall be paid over as provided in
subsection (a) of this Code section.
44-2-131.
(a) Where the owner of registered land dies intestate and there is no
administration upon the estate within 12 months from the date of his
death or in the event administration shall terminate without the land
being disposed of, the heirs at law of the intestate or any one or more
of the persons who claim to be heirs at law of the intestate may petition
the superior court of the county to have their title by descent declared
as to the registered land.
(b) The petition:
(1) Shall set forth the names of all persons who are alleged to be the
heirs at law and, if all are not joined, process or notice shall be
served upon all those not joined;
(2) Shall be verified by the affidavit of one of the petitioners;
(3) Shall set forth in detail the name and last known address of the
decedent;
(4) Shall include a statement whether he was married, single, or a
widower and, if married more than once, the names of all of his wives;
(5) Shall include the names of all children and descendants of
children, if any, showing in detail whether the parents of such children
are living or dead;
(6) Shall show in detail how and whether the persons who are alleged
to be the heirs at law are in fact the heirs at law of such decedent
under the rules of inheritance;
(7) Shall give the date of the death of the decedent;
(8) Shall set forth that the decedent died leaving no will; and
(9) Shall state that in the judgment of the applicant there is no need
for administration upon the estate.
(c) Upon the petition being filed, the judge shall grant an order
setting the petition down to be heard at the courthouse in the county
where the land is located, on some day not less than 30 days from the
date of the petition, and calling on all persons to show cause before
the court on that day why the persons named as heirs at law in the
petition should not be so declared to be by the judgment and decree of
the court. A copy of the petition and the order of the court thereon
shall be published in the newspaper in which the sheriff's sales of the
county are advertised in like manner as sheriff's sales are advertised.
(d) On the day named for the hearing, unless the matter is continued
by order or orders of the judge to some future time, the court shall
proceed to hear and determine the question together with any objections
which may be filed and to adjudge and decree that the alleged decedent is
dead, that there is no administration on his estate, that he left no
will, and who are his heirs at law; provided, however, if it appears that
either the alleged decedent is not dead, or that there is administration
upon the estate, or that an application for administration is pending, or
that the decedent left a will, the petition shall be dismissed.
(e) Upon granting an order of heirship, the court shall order a
transfer of the registered title from the decedent to the heirs at law;
and, upon production of the owner's certificate of the decedent and the
judge's order for a transfer, the clerk shall register the transfer,
cancel the certificate registered in the name of the decedent, cancel the
owner's certificate, and issue a new owner's certificate in the name of
the persons declared to be the heirs at law.
(f) In the petition if the alleged heirs at law are of full age and
under no disabilities and the same so appears to the court and if it
further appears that they have voluntarily partitioned the land in kind
among themselves, the court may, in connection with the order of
transfer, direct that the certificate standing in the name of the
decedent be canceled and that new certificates be registered and issued
to each of the heirs for the particular parcel of land coming to each
under the voluntary partition set forth in the petition.
(g) If the decedent has left a widow, she shall be a party to the
proceedings. The court shall specifically provide what interest or estate
she shall take under the decree of heirship; and, except where in the
decree the land is partitioned into separate tracts, the court shall, in
the decree of heirship and in the order of transfer, specifically set
forth, except where the widow is the sole heir, what undivided interest
each heir shall take.
(h) If the decedent is a female, the procedure shall be similar except
insofar as the difference between the rights of the husband and wife upon
the death of the spouse shall make changes necessary.
(i) Where the wife claims to be entitled to take possession of the
estate without administration under Code Section 53-4-2 of the "Pre-1998
Probate Code," if applicable, or Code Sections 53-1-7 and 53-2-1 of the
"Revised Probate Code of 1998," the procedure shall be substantially in
the same manner.
53-4-51. (Pre-1998 Probate Code)
(a) In the distribution of an estate, every child of the intestate and
the representatives of the distributive share of every deceased child
shall first account for any and all advancements made in the intestate's
lifetime.
(b) If the advancements to any distributee equal or exceed his
distributive share, he shall receive nothing further from the estate.
If the advancements to a distributee amount to less than his share,
each distributee who has received no advancements and each one who has
received less shall first be made equal to the one receiving the
greatest advancement, before a general and equal distribution is made.
Subject to Code Section 53-4-2, if there is a widow, she shall be made
equal to children who have received advancements, in the same manner
as other distributees.
