By: Patrick R. Norris*
When a new couple comes to visit me to set up the base of their first estate plan, one of the common questions that I often receive is: “can the government really inherit [or take] my property if I don’t have a Will?”. This is a question that always make me smile because while the technical answer is “yes”, a much more practical answer is “highly doubtful”.
You see when someone does not have a Will, the laws of their State essentially make a Will for them. State statutes place your relatives in an orderly line for inheriting your estate. So long as they are living, the first person in line receives your property when it comes time to inherit. If they are not living, the next person in line just steps up to inherit.
If you do have a [valid] Will, the State Statutes are “trumped” and your Will (not State Law) dictates who inherits your Estate. This is one of the many important reasons to have a Will.
So, what do these State Statutes say? Each State is different so checking the State Statute of your State [or talking to a trust and estate attorney in your State] is extremely important. For Georgia, where I live, however, here is the order:
1st – Spouse and Children (in equal shares but no less than 33% to the Spouse)
2nd – Parents
3rd – Siblings
4th – Nieces and Nephews (from Siblings)
5th – Grandparents
6th – Uncles and Aunts
7th – Cousins (from Uncles and Aunts)
You many notice that “the government” does not appear anywhere in the first seven places in our line. In fact, “the government” stands at the very back our line, behind possibly even your remote Cousin Eddie who you’ve heard of, but never really met.
Here is where the government does come in: four years after your death, if no one on the face of the Earth has come forward and claimed to have a spot in one of these seven places in your line. If you have no Will and no one claiming to be your family for four years after your death, proceedings can be initiated to have your property “escheat” to the government. What this means is that your Estate can be added to the educational fund of the Board of Education in the county where you reside. Again though, this is four years after your death and with no one coming forward to claim to be your relative (not even Cousin Eddie).
This may seem less remote than you had originally thought. In fact, yes, the local government can possibly inherit your Estate. But, you would have to have no Will and no Cousin Eddie. I’ve actually probated an Estate with no family whatsoever. So it does happen. The fix, however, is easy. A valid Will fully prevents “the government” from inheriting your Estate. If you are worried about Cousin Eddie, you would need a Will for that too.
* Patrick R. Norris is a licensed attorney in the State of Georgia. He is the owner of Norris Legal, L.L.C., a founding partner of the Atlanta Law Group and the co-creator of legaleeze.com. Patrick serves as an adjunct faculty member for the Georgia State University School of Law and frequently guests as a contributor to Your Smart Money Moves. The information contained in this article is for discussion purposes only and is not legal advice upon which you should act. Simply reading this article does not make you a client of Patrick R. Norris, the Atlanta Law Group or any other law firm
