Mandy Moyer

Mandy Moyer

A few months ago, I wrote “Demystifying the probate process” for this column. But in talking to clients and colleagues, I determined that some mysteries remain! So, I’m back again.

Administration, beneficiaries, consanguinity, descendants and decedents, escheat, fiduciary, guardian ad litem, heirs, intestate, jurisdiction, knowledge, lineal, monomania, nondomiciliaries, obliteration, per stirpes, qualification, revocation, sui juris, testate, undue influence, devisavit vel non, witnesses, year’s support - it’s true, probate court has its own dictionary.

Today, we’ll focus on two sets of words: first, testate and intestate, and then, beneficiaries and heirs. Many people and even lots of lawyers use these words improperly, and mix their meanings.

Testate vs. intestate

When a person dies owning property, be it money or a house or anything, the law requires that we be able to figure out who owns that property now that the owner is gone. When there’s a will that’s been admitted to probate, then the property passes per the will. The will determines who gets what, and the deceased person is said to have died “testate,” that is leaving a valid will.

But what if there isn’t a will? Does all the deceased person’s property become property of the state? Technically, that can happen and it’s called “escheating,” but a lot of things have to go wrong. Usually, it looks more like this: what’s left goes to the spouse and the surviving children, or just to the surviving spouse if there were no kids, then to his parents, then to his siblings and his siblings’ kids (his nieces and nephews), then to his grandparents, then to his uncles and aunts, and so on and so forth down the bloodlines. When there’s no will, the deceased person is said to have died “intestate,” or without leaving a valid will. The rules about how property passes when there’s no will are called the “laws of intestacy.”

To recap: if your loved one dies “testate,” then they died with a valid will. Their property will be divided as set out in their will. If they die “intestate,” then they didn’t have a will, and who gets what is decided by state law. So, your family isn’t going to have to give the State of Georgia all of your worldly possessions unless your family is all gone, too (or you owed the State of Georgia a lot of money).

So, what happens to your stuff when you die depends on whether you have a will, and there are specific, “legalese” words that apply to each scenario. Would it surprise you to learn that there’s also a specific term for the people that get your stuff? In fact, there are two terms.

Heirs vs. beneficiaries

“Heirs” (pronounced “airs”) are the people legally entitled to receive your property upon your death. Their entitlement is based on the law, specifically the “laws of intestacy”… not on any document that you signed before your death. So, the people who get your stuff after your death if you died without a valid will are called your “heirs at law,” or “heirs” for short.

When you pass away with a valid will, whether you receive property under a will is up to the deceased person unlike the right to inherit property pursuant to state law. You can leave property to anyone under your will, family or not. (So you can also prevent your heirs from inheriting from you by making a will, if that’s your goal.) As long as you die with a valid will, the people named the will, or “beneficiaries,” get your stuff, instead of your heirs.

To recap: if you die without a valid will, or intestate, then your heirs get your stuff. If you die with a valid will, or testate, then your beneficiaries get your stuff. (Or technically speaking, what’s left after all your debts are paid.)

Putting it all together

When you file a petition to probate will in solemn form seeking to have the probate court confirm that the will of a deceased person is valid, you are asking the court to honor the deceased person’s wishes in their will over the provisions of state law that say who gets what. And if there was no will, who would get everything? The deceased person’s heirs, that’s who. So, because the court’s acceptance of a will takes rights away from the heirs, you have to give notice of a petition to probate to his heirs -- whether or not they’re also beneficiaries under the will.

When there’s a valid will that’s been admitted to probate, all the property has to be distributed per the will. When that’s been done, the next step is to close the estate using a petition for discharge of personal representative. Once again, notice must be provided… but this time, notice is given to the beneficiaries. Unlike the heirs who would have received property under state law but may not have been named in the will, the beneficiaries are the people who receive the deceased person’s property pursuant to the will. In ensure the terms of the will were followed, the court has to provide notice to those people who were supposed to receive assets under the will - the beneficiaries.

To recap: when there’s a will, you have to provide notice to the heirs in the beginning, and notice to the beneficiaries in the end. But when there’s no will, you only provide notice to the heirs in both the beginning and the end. Because there’s no will, there’s only one set of people entitled to the deceased person’s property - his heirs.

Mandy Moyer is a Georgia licensed attorney focusing on probate and estate law. She owns and manages Georgia Probate Lawyers Moyer, LLC, a law firm dedicated to providing responsive, compassionate representation to families in probate and guardianship cases. She is a native of Cherokee County, and a graduate of Kennesaw State University and the University of Georgia School of Law. Learn more here:

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