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If there is no will at the time of death in the State of Georgia, does everything automatically go to the spouse?

Cartersville, GA |

Had been married for 17 years. The deceased person had inherited a house that they lived in together during their 17 years of marriage. Need to know where to go from here to have house transferred to spouse.

Attorney Answers 4


This answer is not intended to provide you with specific legal advice regarding your situation, or to create any attorney-client relationship.

If the deceased person was listed on the deed to the house as its sole owner at the time of his death (I will assume the deceased was a he for purposes of this answer, since you don't specify), then the house is now part of his probate estate. If the deceased died without a Will, then in Georgia the answer to who receives his probate estate depends on who his heirs are. If the deceased was legally married and his spouse survived, then the spouse is at least one of the heirs. If there are any children, however, or grandchildren, or other descendants who survived the deceased, then the spouse likely is not the only heir. If the spouse is not the only heir, then the spouse will not receive 100% of the probate estate. Instead, you look at the number of (1) children of the decedent who survived him - including biological children and legally adopted children but not including stepchildren, in general, plus (2) the number of children of the decedent who did not survive him but who had one or more descendants who did survive him. If there was only one child under that calculation, the spouse and the child split the estate (if the child is predeceased, the child's children receive the child's share).

If the deed does not simply list the decedent as the sole owner of the house, then some or all of the property may not even be part of the decedent's probate estate. So, it is critical to understand exactly what the deed says in order to determine what happens to the property, even before understanding what happens to the probate estate. I strongly suggest that the spouse consult an experienced estate attorney to determine what the exact situation is.

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As usual, Ms. DiSalvo is correct in her analysis. I did want to add that the Probate estate is paid out based on priority status. Consequently, before any beneficiary of the estate receives any estate assets, payments are fist made for Year's Support claims made by the surviving spouse and any minor children, estate administration expenses, and creditor claims. You should also note that the spouse as an heir will get at least 1/3 of the remaining assets even if there are more than 2 children. I also recommend that the surviving spouse consult with competent legal counsel in handling the estate.

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Since your question suggests that you want the house to go to the spouse, and the other commentors have told that this will not happen automatically, the best route would be the Petition for Year's Support that Mr. Morgan mentioned. If this has been the spouse's home for 17 years, most judges will award such a residence to the spouse as Year's Support unless through some unusual circumstances the spouse is clearly better off financially after the death than before. Year's Support is unique to Georgia, and most people find it necessary to get the help of an attorney.

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The answer depends on things you didn't tell us.

Unless the spouse was added during his life to the deed with right of survivorship, the answer is no.

In that one situation the answer is yes.

Assuming the answer is no, the answer depends on whether he had children. That changes the answer significantly. Depending on additional details she may need to administer an estate, seek years support or do no administration necessary in probate court.

Even if the answer above is yes, recording an affidavit of inheritance is a good idea.

An attorney can easily sort through all this and make the best and least expensive choices.

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