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What do I do when a family member dies?

The person who has passed away is identified as the decedent.  A person who is a relative of the decedent is called an heir.  A person who is left something in a will is a beneficiary. Therefore, you can be both a beneficiary and an heir.

The person named as the person to handle the decedent’s affairs is known as the nominated executor.  Once the will has been accepted by the probate court, the nominated executor will become the executor. Once you are the executor, you might also be identified as the personal representative.  If a second person is named in will to take the place of the nominated executor if that person cannot handle the probate process, that person is known as the successor executor.  If the successor executor is named by the court to handle the estate, this person is also known as the executor or personal representative.

Our goal is to assist you in obtaining whatever is lawfully and legally yours.  In a will, the decedent has created a paper that identifies those things that are to happen after the person dies.  That paper is the will.  The will identifies the beneficiaries and how the decedent wanted his assets and debts handled after his death.  It is the executor’s obligation to ensure that all of the decedent’s wishes are fulfilled, at least to the extent possible.

Many times, decedents leave property in their will that they did not own at the time of their death either because they gave it away earlier in their lives or they had sold it or it merely became obsolete and was discarded.  Our firm can assist in determining what should be done in situations like that. Sometimes you do nothing.  Other times you must give the beneficiary something of equal value. Also, decedents may leave cash if to various beneficiaries.  On occasion, the decedent does not have enough property to fulfill those cash gifts at his death.  Again, we can assist you in determining your obligations as executor in fulfilling the decedent’s wishes

When someone passes away and you find an original will created by the decedent, you are required to file the will with the probate court in the county where the decedent lived.  The will can be filed for probate or for safekeeping.  Therefore, if you are the one who has located the will, and you have possession of it, it is your legal obligation to give that will to the court.  Many times, a will does not have to be offered for probate, but simply needs to be filed with the probate court.

The reasons for not filing a will for probate generally involve situations where the decedent does not own any assets for which probate is necessary in order to transfer those assets to their intended beneficiary.  Examples of this are real estate that is owned jointly with right of survivorship with another person.  Other examples are bank accounts that are held in joint name or accounts for which there is a designated beneficiary.  This includes investment accounts, retirement accounts.  Also, life insurance policies generally have named beneficiaries and do not require probate.  All of these assets will be transferred to their rightful owner directly because the bank or financial company holding those assets is obligated by contract to pay those assets to the named beneficiary.  The named beneficiary on the various contracts will prevail over statements in the will to the contrary.

For instance, if the decedent divorced his wife 20 years ago and had a life insurance policy at the time of the divorce that named the wife as the beneficiary, the decedent was required by law to change the beneficiary from his wife to another person if he did not want her to inherit or receive those proceeds.  Just after the divorce the decedent prepared a new will, specifically stating that he did want his former wife to inherit any of his assets.  The beneficiary designation on the life insurance policy will prevail over the decedent’s desires to exclude his former wife from his estate.  This is especially troubling if the decedent died and was remarried. The new wife has little opportunity to prevail over named beneficiary for the proceeds.  As with most rules in life, there are some exceptions to the above, and this firm can help you sort through those exceptions.

If the decedent died without a will, he still has expressed his desires on how to distribute his estate.  He has chosen Georgia’s statutory distribution plan.  In Georgia, those rules are set out by law and can be found at O.C.G.A. § 53-2-1.  Generally speaking whenever a person dies, his spouse and children are entitled to equal shares of his estate.  However the wife is entitled to no less than 1/3 of the estate.  Therefore if the decedent passed away with no children but was married, his wife will inherit everything to the exclusion of the decedent’s siblings and parents.  If the decedent passed away without a spouse but with children, then each child will each be entitled to an equal share of the estate.  If the decedent has a child who died before him, that child for these purposes is considered a pre-deceased child.  The heirs of a pre-deceased child shall stand in place of the deceased child for purposes of determining inheritance.  If the decedent passed away with a spouse and a child, then each of them will inherit 50% of the decedent’s estate.  If the decedent passed away with a spouse and two children, each of them will receive 1/3 of the estate.  Finally, if the decedent passed away with a spouse and three children, the spouse will inherit 1/3 of the estate and the three children will share 2/3 of the estate, meaning each child will inherit 2/9 of the estate.

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