Determining Heirs – Georgia’s Rule of Inheritance
The term “heirs” is frequently used in wills and trusts to define the individuals who will take your property if your named beneficiaries are unable to do so, either due to their failure to survive you, a disclaimer or otherwise. And if you have no will, your probate estate will go to your heirs. But do you know who your heirs are?
The Georgia Probate Code defines “heirs” as “those one or more individuals who survive the decedent and are determined under the rules of inheritance to take the property of the decedent that is not disposed of by will.” O.C.G.A. § 53-1-2(9). The rules of inheritance are set forth in O.C.G.A. § 53-2-1 and can get quite complicated, especially in cases where only distant relatives survive.
The decedent’s estate goes to the surviving spouse if there are no surviving children or other descendants. If survived by both a spouse and children or other descendants, the spouse and the children share the estate equally, with the provision that descendants of a deceased child take that child’s share per stirpes and with the provision that the spouse’s portion cannot be less than one-third. O.C.G.A. § 53-2-1(c).
The late Eleanor Richardson, a fierce champion for women in the Georgia House of Representatives, is credited with getting the legislature to increase the spouse’s minimum share from one-fifth, where it was as late as 1984, to one-third. Because most surviving spouses are women, she argued for a minimum one-half, but had to settle for one-third.
Per Stirpes Is Not a Childhood Disease
The Latin term “per stirpes” means by the roots, or by representation, and is used to distinguish the rule from that of “per capita,” which means by the heads, or by the number of individuals. To illustrate, suppose the decedent is survived by a spouse, two children and two grandchildren, who are the children of a deceased child. There are five heirs, but they will not share the estate equally. Because we have both a surviving spouse and children, the spouse gets a one-third share. The remaining two-thirds will be divided into three parts, one part to each surviving child, and the third part split equally between the children of the deceased child, who step into the shoes of their parent. To recap:
Spouse receives 1/3 or 33%
Child (1) receives 2/9 or 22.22%
Child (2) receives 2/9 or 22.22%
Grandchild (1) receives 1/9 or 11.11%
Grandchild (2) receives 1/9 or 11.11%
This is what per stirpes means. If the distribution were per capita, the remaining two-thirds would be divided by the heads or number of individuals, or in this case into four parts, one part to each child and each grandchild, 1/6 or 16.66% each.
What Ifs…
If there is no spouse, the estate goes to the children per stirpes. If there is no spouse and no children, the estate goes to the parents equally. If there is no surviving spouse, children or parents, then the estate goes to the decedent’s siblings equally with a deceased sibling’s descendants taking that sibling’s share per stirpes. If no siblings survive, the estate goes to nieces and nephews, with descendants of a deceased niece or nephew taking per stipes. If there are no siblings, nieces or nephews, then the estate goes to grandparents (thank you, AARP).
If we still have no takers, then we go to uncles and aunts of the decedent and descendants of a deceased uncle or aunt take the uncle or aunt’s share per stirpes. Uncles and aunts in this context mean the children of the decedent’s parents, i.e., blood relatives, and not the spouses of the uncles and aunts. If no aunts and uncles of the decedent survive, the estate is divided equally among the decedent’s first cousins. If we still have no surviving heirs, then the Probate Code has a formula for determining the nearest relative by counting steps in the chain to and from the decedent and the closest common ancestor.
Why Should You Care?
There are three main reasons for understanding who one’s heirs are. The first is that if you have no will or other estate planning documents, you might want to know who the Georgia legislature selected to take your property at your death. The second is that if your planning documents leave property to your heirs, even as a default or backup plan, you want to know who your heirs are and what they would receive. The third is that in order to probate a will, the Probate Code requires that the heirs be served with notice of the Petition To Probate. If you do not know your heirs or how to contact them, your executor will have a problem getting your will probated efficiently. One option may be to use a revocable trust as your primary estate planning vehicle or to use other techniques (POD accounts or account beneficiary designations) so that notification of remote or unknown heirs will not be required.