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Heir Property Heir ProPerty IN GEORGIA Second edition, April 2010 Heir ProPerty IN GEORGIA Second Edition, April 2010 Contents Heir Property Ownership 4 Laws of Descent and Distribution 7 Year’s Support 10 Disadvantages of Heir Property 12 Partition Sales 14 Tax Sales 17 Frequently Asked Questions 20 Steps to Protect Your Land 22 Options for Ownership with Clear Title 23 Glossary 27 Acknowledgments 31 The information in this manual is provided as a matter of public service and is for informational use only. The information does not constitute legal advice and should not be used as such. Users of this manual are strongly urged to confer with legal counsel in matters involving heir property. Heir ProPerty ownersHiP History teaches us that land valid will, the person is said to have ownership represents an important died “intestate,” and the property source of wealth and stability owned by the deceased at death is for Georgians. Georgia played known as intestate property. All of a historical and significant role the intestate property is collectively within the agricultural industry, known as the deceased’s “estate.” both before and after the Civil Until a personal representative War. As a result, large acres of land is appointed to administer the were historically held among a deceased’s estate, title to heir relatively small group of owners, property automatically passes to including farmers. With the the qualified heirs who then own passing of each generation, these the estate as tenants in common, large tracts of land succeeded to meaning that each heir owns a new generations, either by will, or fractional interest in all of the by descent, through operation of property. As a tenant in common, law. A tradition of verbal bequests each qualified heir has the right to was commonplace among farmers use and possess all of the property, and other rural landowners in the and this right is limited only by the south, and it remains even today right of the next heir to use and a common practice among a possess the entire property as well. diverse group of landowners, even those not directly involved in the All Georgians who own fractional agricultural sector. Verbal bequests interests in heir property should of land are generally not legally know the rights and obligations recognized in Georgia, and thus, that accompany such ownership, as often result in the ownership of well as the steps one must take to “heir property,” which is land held protect one’s rights and meet one’s in common by the descendants of obligations to guarantee enjoyment someone who has died without a of all the benefits of property valid will, or whose estate was not ownership. offered for probate. When the number of heirs becomes When a landowner dies without a so large that the family members 4 living on the land can not identify all of the owners, then the people living on the land discover a hard truth: the title they thought was clearly theirs is not actually clear after all. Their ability to use the property as they see fit can be impaired as a consequence. It is rare that all heirs agree on how to use, possess, or sell the property. Owners of heir property often do not realize the full benefits of land ownership. The disadvantages of owning heir property include the inability to (i) finance land (a bank would require all owners to agree to mortgage the property and repay a loan), (ii) lease land to others (a prospective tenant would rather be responsible to only one landlord), and (iii) fully use and possess the property (all heirs have the simultaneous right to possess the property, but in reality, only one tenant can occupy any one portion of the land at once). Aside from the disadvantages of not being able to finance, lease or use the land as a sole owner would, heirs are also at risk of losing their property because of forced partition sales or tax sales, which may lead to the sale of the property to non-family members. 5 6 Laws of DesCent anD Distribution Whenever a Georgia landowner dies only by a spouse, the spouse is the intestate, title to the deceased’s sole heir and acquires the entire intestate property automatically estate. If the deceased is survived passes (or “descends”) to his or by a spouse and is also survived by her heirs by operation of law. two or fewer children, the spouse An “heir” is a person that (i) is and the children share the estate in related to the deceased by blood equal shares. If there is a surviving or marriage, and (ii) is then living spouse and more than two children, at the time of the deceased’s and the landowner died on or after death. The title that automatically January 1, 1998, the spouse takes vests in the heirs is subject to be 1/3 of the estate and the children divested (or taken away) from share the rest in equal shares; the heirs and vested within the however, if the landowner died personal representative, when before January 1, 1998, the spouse such representative is appointed takes at least 1/4 of the estate, by the probate court to handle and the children share the rest in the deceased’s estate; however, equal shares. If the deceased is the personal representative is not survived by a spouse, children, responsible for distributing the or any grandchildren, the family property to the qualified heirs. members who are closest to the deceased based on their degree of The Official Code of Georgia kinship are entitled to inherit the Annotated (the “Code”) governs estate. Family members who may how intestate property is to be be heirs include parents, brothers distributed among the landowner’s and sisters, nieces and nephews, heirs at law. grandparents, aunts and uncles, first cousins, and other distant The following rules of descent cousins.1 apply to Georgia landowners who 1 It is important to note that the Code was have died intestate: When a person revised in 1998, and the rules governing the dies without any living children distribution of intestate property may differ ac- or grandchildren, and is survived cording to whether the landowner died before or after January 1, 1998. 7 Georgia law specifies that half- kin. Children born out of wedlock blood relatives (who share only one can also inherit from their father biological parent with their siblings) or their father’s kin, but only if are entitled to inherit the same the father’s paternity has been portion of the estate as if they were established (by court order, by the siblings of whole-blood (siblings father signing the birth certificate, who share the same mother and by the father acknowledging his same father). paternity in a sworn affidavit, or by other clear and convincing evidence Georgia law also permits that the child is the child of the grandchildren of a deceased father). grandparent to take a child’s share by representation, where Inheritance rights are given to the child (the grandchild’s parent) children born after the deceased predeceases their parent (the parent’s death. Protection is also deceased grandparent). afforded to those who are not residents of Georgia. The law treats adopted children the same as biological children, If no heir survives the deceased, meaning the adopted child may or if the heir fails to appear and inherit through the adoptive claim an interest in the intestate parents and their relatives, and property, the property automatically the adoptive family members can “escheats,” or passes, to the State inherit through the adopted child. of Georgia. Georgia law also protects the inheritance rights of children born out of wedlock and establishes their right to freely inherit from their mother or their mother’s 8 Example of Descent of Intestate Estate Landowner Surviving Spouse (Deceased) 1/3 Child (out of wedlock; but Child (Deceased) Child (Adopted; no issue) paternity acknowledged) 2/9, passes to Child’s heirs 2/9 2/9 Grandchild (0) Grandchild Grandchild* Grandchild’s 1/9 (Deceased after Surviving Child) Spouse 1/9, passes to 1/18 Grandchild’s heirs Great-Grandchild Great Grandchild (0) 1/18 * In this example, the Landowner’s property passes to Grandchild’s surviving Spouse only if the Child predeceases the Grandchild. If the Grandchild dies before the Child, Child’s heirs would only be the surviving Grandchild & Great-Grandchild. 9 year’s suPPort Georgia law specifies that if a more commonly given to secure decedent is married at the time the repayment of a home or farm of death and is survived by a loan in Georgia, as opposed to spouse or minor children (or both), mortgages. So, in most cases, the the surviving spouse and minor award of year’s support will not children (if any) are entitled to extinguish a lender’s foreclosure receive property for their support right or the right to have a and maintenance for the first year loan repaid on a home that is following the decedent’s death. This encumbered by a security deed and entitlement is known as “year’s awarded to the deceased’s spouse support.” or children as year’s support. When real property is awarded In order to obtain year’s support, to a surviving spouse and minor the spouse and children must file children as year’s support, they own an application for year’s support title to the real property as tenants with the probate court in the in common, in equal shares. The county where the deceased last property is given free and clear resided.
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