No one enjoys thinking about their death; therefore, estate planning often falls to the bottom of the to-do list—not because it’s unimportant, but because it forces us to confront our mortality.
Many people assume that if they’re married with children, their estate will transfer to their surviving family members. While that may eventually happen, it doesn’t mean the process will be all sunshine and flowers.
At its core, your estate plan determines who you want to receive your assets when you die. If you pass away without a will—a situation known as dying intestate—your state’s laws decide how to distribute your property. For example, in Georgia, if you’re married without children, your estate generally goes to your spouse.
Even with what seems like a clear situation, it’s not always simple. Your estate will still have to go through probate—the legal process that validates your will and authorizes the person you’ve named to carry out your final wishes. If you die without a will, the court initiates an administrative probate process and appoints someone to act as the administrator of your estate.
Not all assets are treated equally under probate laws. Probate assets—such as individually owned real estate, personal property, or bank accounts without a designated beneficiary—must go through the probate process before being distributed.
Assets with beneficiary designations, like IRAs, life insurance policies, and certain bank or brokerage accounts, pass directly to beneficiaries named on those accounts. Some property, such as a home, can be titled as joint tenants with rights of survivorship, meaning ownership automatically transfers to the surviving spouse or co-owner when one passes away—bypassing probate. However, if no beneficiary is listed, those assets will likely be subject to probate. Keep in mind that beneficiary designations or assets titled jointly supersede whatever you have in your will. So, it’s important to periodically review asset titling and beneficiary information to ensure assets flow according to your wishes.
If you don’t put your wishes in writing, you’re leaving decisions about your estate up to the court. Every state has intestacy laws, which dictate how to distribute assets in the absence of a will. The problem is a default approach doesn’t account for the quality of your familial relationships. The court may give control to someone you would never have chosen.
Georgia’s intestacy laws follow a general order: If you are married, your assets go to your spouse; if you’re married with children, your assets are divided among them; if you have no spouse or children, your assets go to your parents; if your parents are deceased, your assets will go to your siblings; if you have no parents or siblings, it could go to your cousins or other distant relatives. Even in the simplest of cases, a will is critical.
Let’s say you’re married with two children and die without a will. Your spouse will retain custody of the children, but under Georgia law, your assets are divided: one-third to your spouse and two-thirds split between your children. That means your minor children now own two-thirds of your home, vehicles, bank accounts, and other assets. Their portion will be held in a custodial account until they reach age 18. In the meantime, the court will appoint a guardian ad litem to oversee those assets. That person—who may not be your spouse—must approve any decisions involving those funds. If you were the breadwinner, your surviving spouse may face considerable financial hardship. Despite living in the same home, they cannot sell it, refinance it, or access the children’s share of financial accounts without the guardian’s permission.
Without a will, you potentially sacrifice your own wishes and leave your loved ones navigating a complex legal system during one of the hardest times of their lives. Estate planning isn’t just about money. It’s about care, clarity, and peace of mind.
If you have questions on your estate plan, the experts at Henssler Financial will be glad to help:
- Experts Request Form
- Email: experts@henssler.com
- Phone: 770-429-9166
Listen to the June 7, 2025 “Henssler Money Talks” episode.
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