When a person dies, her surviving spouse may be responsible for the probate of the decedent's estate if she named him executor in her will. If she died without a will, a Georgia court must appoint an administrator for probate, often the decedent's surviving spouse. Regardless of the surviving spouse's responsibilities, he has certain rights to the decedent's estate under Georgia law.
Under Georgia law, only a valid will, one that meets the state's requirements, can be submitted for probate. A person can make a will if she is no less than age 14, mentally competent and voluntarily decides who will receive her property, as well as who will serve as executor. Additionally, the testator's will must be in writing and signed by the testator and two witnesses. Those witnesses serve to independently affirm the testator's age and competence.
If the surviving spouse was named as executor, he is responsible for submitting the decedent's will for probate, collecting all property in the estate, notifying all potential beneficiaries of their potential inheritance, and distributing the property once the will is approved by the court. During probate, a surviving spouse is entitled to any bequest left to him in the will as well as compensation for performing the duties of an executor.
A testator is free to bequeath her property to any person or organization she desires. However, a surviving spouse is entitled to a percentage of the estate for financial support. A surviving spouse can request "support and maintenance" for himself and his minor children for up to 12 months after the decedent's death. The court sets that amount based on the size of the estate and surviving spouse's financial need. It is important for the spouse to file a request for support soon after the will is submitted for probate. If he chooses to remarry, he will not be entitled to support from his deceased spouse's estate unless he submitted the request before his subsequent marriage.
When a person dies without a will, or when a Georgia court declares a will invalid, the estate is distributed according to intestate law. A surviving spouse is entitled to inherit the entire estate if the decedent is not survived by children. If the decedent had children, however, the spouse has a right to a minimum of one-third of the estate. If there is only one child, the child and surviving spouse would each inherit one-half of the estate.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.