Notes Concerning the Legal Aspects of Death and Dying: Presented at Perimeter College on April 11, 2012 Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
www.woodandmeredith.com
hwood@woodandmeredith.com
www.hughwood.blogspot.com
Phone: 404-633-4100
Fax: 404-633-0068
hwood@woodandmeredith.com
www.hughwood.blogspot.com
Phone: 404-633-4100
Fax: 404-633-0068
I. A Death Certificate is Required at Death in Georgia
CODE OF GEORGIA
(a) A certificate of death for each death which occurs in this state shall be filed with the local registrar of the county in which the death occurred or the body was found within ten days after the death as follows:
(1) If the place of death is unknown but the dead body is found in this state, the certificate of death shall be completed and filed in accordance with this Code section. The place where the body is found shall be shown as the place of death. If the date of death is unknown, it shall be the date the body was found and the certificate marked as such; or
(2) When death occurs in a moving conveyance in the United States and the body is first removed from the conveyance in this state, the death shall be registered in this state and the place where it is first removed shall be considered the place of death. When a death occurs on a moving conveyance while in international waters or airspace or in a foreign country or its airspace and the body is first removed from the conveyance in this state, the death shall be registered in this state but the certificate shall show the actual place of death insofar as can be determined.
(b) The funeral director or person acting as such who first assumes custody of the dead body shall file the certificate of death. Such director or person shall obtain the personal data from the next of kin or the best qualified person or source available and shall obtain the medical certification from the person responsible therefor.
(c) The medical certification as to the cause and circumstances of death shall be completed, signed, and returned to the funeral director or person acting as such within 72 hours after death by the physician in charge of the patient's care for the illness or condition which resulted in death, except when inquiry is required by Article 2 of Chapter 16 of Title 45, the "Georgia Death Investigation Act." In the absence of said physician or with that physician's approval the certificate may be completed and signed by an associate physician, the chief medical officer of the institution in which death occurred, or the physician who performed an autopsy upon the decedent, provided that such individual has access to the medical history of the case, views the deceased at or after death, and death is due to natural causes.
(d) When death occurs without medical attendance as set forth in subsection (c) of this Code section or when inquiry is required by Article 2 of Chapter 16 of Title 45, the "Georgia Death Investigation Act," the proper person shall investigate the cause of death and shall complete and sign the medical certification portion of the death certificate within 30 days after being notified of the death.
(e) If the cause of death cannot be determined within 48 hours after death, the medical certification shall be completed as provided by regulation. The attending physician or coroner shall give the funeral director or person acting as such notice of the reason for the delay, and final disposition of the body shall not be made until authorized by the attending physician, coroner, or medical examiner.
(f) When death occurs on or after July 1, 1985, in a county other than the county of the residence of the deceased person, a copy of such person's death certificate shall be forwarded as soon as practicable by the department to the custodian of records of the county of the residence of such deceased person. The custodian of records shall file such death certificate as a part of the permanent records of such office.
(g) By the twentieth day of each month, the state registrar shall furnish to the Secretary of State's office, in a format prescribed by the Secretary's office, a list of those persons for whom death certificates have been filed during the preceding month. Such list shall be used by the Secretary of State to notify local registration officers for the purpose of purging the voter registration list of each county.
II. Illegal to Abandon a Dead Body. (Felony)
CODE OF GEORGIA
Title 31. HEALTH Chapter 21. DEAD BODIES Article 3. OFFENSES
Current through Chapter 419 of the 2012 Legislative Session
(a)(1) Any person who throws away or abandons any dead human body or portion of such dead body shall commit the offense of abandonment of a dead body.
(2) It shall not be an offense under this subsection to make final disposition of a dead human body or portion of such dead body under a death certificate issued under Chapter 10 of this title or the law of another jurisdiction by interment, entombment, inurnment, scattering of cremated remains, burial at sea, or any means otherwise authorized by law; nor shall it be an offense under this subsection for any law enforcement personnel, medical or medical laboratory personnel, hospital personnel, coroner or medical examiner, funeral director, embalmer, crematory operator, or cemetery operator to perform those duties or acts relating to possession or disposition of a dead human body or portion of such dead body which are otherwise imposed or authorized by law or lawful contract; nor shall use of a dead human body or portion of such dead body at or by an accredited medical school, dental school, college, or university for education, research, or advancement of medical or dental science or therapy be an offense under this subsection.
(b) Any person who commits an offense of abandonment of a dead body as provided by subsection (a) of this Code section shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than three years.
III. The Georgia Directive for Health Care Decisions
The new Georgia Advance Directive for Healthcare replaces Living Wills and Durable Power of Attorney
October 16, 2007
ATLANTA (GA) – The Department of Human Resources Division of Aging Services (DAS) informs Georgians that as of July 1, 2007, the new Georgia Advance Directive for Healthcare has replaced the Georgia laws on the Living Will and the Durable Power of Attorney for Healthcare. This document combines the characteristics of both the living will and the durable power of attorney for healthcare and still allows people to choose for themselves the medical care they want when they are no longer able to communicate with doctors or family. Those persons who already had living wills and/or durable powers of attorney for healthcare are allowed to keep the forms that they have and they are still legally binding until they are revoked. The Durable Power of Attorney for H ealthcare was repealed or removed from the law and the Living Will law was completely rewritten and replaced. For a copy of the Georgia Advance Directive for Healthcare, go online at www.aging.dhr.georgia.gov and click on Publications on the left.
"Having one document to fill out will simplify the process for people choosing to decide for themselves the medical care they want when they are unable to communicate with others," said Maria Greene, Director of DAS. "We encourage individuals to go to our website to obtain a copy of the new Georgia Advance Directive for Healthcare."
Like the living will, the Georgia Advance Directive for Healthcare allows for withholding or withdrawing treatment and authorizes a person’s doctor to withhold or withdraw certain medical procedures such as a respirator or ventilator in certain conditions. It also permits one to choose to accept or refuse artificial nutrition or hydration-feeding tubes. And like the former durable power of attorney for healthcare, the Georgia Advance Directive for Healthcare allows one to appoint an agent to carry out many more medical treatment decisions and choose the kinds of medical treatment they do or do not want.
The changes by the 2007 Georgia General Assembly were made to reduce confusion, inconsistency, out-of-date terminology and confusing and inconsistent requirements for execution as well as to follow trends set by other states to combine the concepts of the living will and healthcare agency into a single legal document.
Once the Georgia Advance Directive for Healthcare is signed, the person should have several copies made. The originals should be kept with your other important papers, such as your Last Will and Testament. These papers should be kept in a place where someone can find them. Copies should be given to your family members and your doctors. These documents can be revoked at any time.
A Georgia Advance Directive for Healthcare allows people to retain control over their medical care, even if they are no longer able to communicate. Making decisions about this document should help individuals and their families rest easier, knowing that their wishes about their care are known. The law does not require a person to consult an attorney or a physician when executing these documents, but if someone has questions about them, it is a good idea.
The Division of Aging Services provides free information forms on the Georgia Advance Directive for Healthcare. For more information, contact the Division of Aging Services at 404-657-5319 or go to the Division’s website at www.aging.dhr.georgia.gov and click on Publications on the left.
You can download the Advance Directive here or get it off the DHR . GEORGIA . GOV website.
http://www.docstoc.com/docs/118231651/advance-directive
A General Power of Attorney (Georgia) may be downloaded at:
http://www.docstoc.com/docs/118237101/Georgia-General-Power-of-Attorney-Form
IV. The Five (5) Year Look Back Rule for Medicaid / Nursing Home Care :: Disposing of Assets for Nursing Care
[This overview refers to New York. The Georgia Asset limitations are listed below]
Q. IF MY SPOUSE IS GOING INTO A NURSING HOME, CAN HE OR SHE TRANSFER ALL OF HIS OR HER ASSETS TO ME AND QUALIFY FOR MEDICAID?
A. No. To determine the eligibility of the spouse who is going into the nursing home to receive Medicaid, all of the non-exempt assets held by the husband or wife are added together and then the total divided equally between the spouses. To the extent the healthy spouse's half exceeds $74,820, in New York State, the Community Spouse Resource Allowance, (CSRA), the excess is attributed to the spouse going into the nursing home, thereby disqualifying the spouse going into the nursing home from receiving Medicaid.
The spouse outside of the nursing home can retain $74,820 in New York State, the CSRA, in otherwise non-exclude able assets, plus homestead, plus personal property, plus a burial reserve, plus an automobile and set up certain burial space agreements for children, their spouses. brothers, sisters and their spouses, etc. pursuant to strict rules set forth in an Administrative Directive issued in July, 2011, which must be carefully followed. You can protect a substantial amount of your assets if burial space agreements for family members are used correctly. Interest on burial accounts is also exempt for Medicaid purposes.
While the Community Spouse Resource Allowance (CSRA) can be as high as $109,560 for seniors with a large amount of assets, this higher CSRA results in the payment of more of your assets for nursing home costs.
It is important to understand that under New York law:
1. A spouse is charged with legal responsibility for the other spouse's nursing home costs. This means that the income and resources of the healthy spouse are considered as available to the Medicaid applicant spouse who is going into a nursing home and will be considered in determining if that spouse qualifies for Medicaid, and
2. If the healthy spouse has assets in excess of $74,820, those excess assets must be spent on medical care until the healthy spouse's assets are down to $74,820, and
3. If the healthy spouse's monthly income is more than $2,739 per month, the local Social Services Department will normally require 25% of the excess income to be spent on the nursing home costs of the spouse in the nursing home.
4. If the total income of both spouses does not exceed $2,739 per month, all of the total income can go to the healthy spouse, even if their spouse is in a nursing home.
5. The healthy spouse can refuse to support the spouse in the nursing home, but then the Department of Social Services has the right to sue the healthy spouse to recover money it pays for the nursing home costs of the spouse in the nursing home. Doing what is called a "spousal refusal" may make sense in certain situations because the Medicaid rate is less than the private pay rate.
5. Q. HOW MUCH INCOME CAN I MAKE AND QUALIFY FOR MEDICAID
A. Any person over 64 whose net income is less than $767 per month, plus an unearned income credit of $20 ($1,117 for a couple) per month, plus an unearned income credit of $20 for some couples) has satisfied the income means test for SSI related Medicaid. A single individual residing in a nursing home is permitted only $50 per month as a personal needs allowance, plus assets of $13,800 ($20,100 for a couple) plus a burial reserve. (Caution: under New York's new Estate Recovery law, passed April 1, 2011, if the person on Medicaid has this $13,800 exempt amount or any lesser amount of money in a joint account at the time of death, Medicaid can get a lien on those funds at the time of the Medicaid recipients death. Therefore planning needs to be done after the Medicaid recipient is on Medicaid and before the Medicaid recipient passes away to protect even the $13,800 exempt amount from Medicaid's lien under the new law.) You can set up a trust with a funeral director to prepay funeral expenses and the money in the trust will not be counted as a resource for Medicaid as long as any money not spent on the funeral is turned over to the Medicaid upon the senior's death. Caution, at the current time, only the cost of the vault, burial container, opening and closing of the grave, plot, stone and casket are treated as exempt for the community spouse, as opposed to the Medicaid applicant. (Car and personal residence may be exempt.) The law provides that the spouse of an individual who has established his or her eligibility for Medicaid is entitled to a monthly income not to exceed $2,739 per month.
6.Q. CAN I TRANSFER MY ASSETS TO MY CHILDREN OR OTHER FAMILY MEMBERS JUST BEFORE I GO INTO A NURSING HOME?
A. LAW IN EFFECT AFTER FEBRUARY 8, 2006. There is a new law in effect after February 8th, 2006 that will change previous law drastically. The bottom line is that under the new law there is a five year look back period and any assets transferred within 5 years of you going into a nursing home and making a Medicaid application will disqualify you from receiving Medicaid until that penalty period has run. Under the old law before February 8th, 2006, there was a Thirty Six Month Rule (applicable to outright transfers) and a Sixty Month Rule (applicable to certain transfers in trust). Eligibility for medical benefits is denied for a period of time if the person going into the nursing home transferred assets for less than fair market value within thirty six or sixty months before his or her application for Medicaid benefits. Under the old law which applies to transfers made before February 8, 2006, the period of ineligibility begins the first day of the month following the month in which the resources were transferred and lasts for a number of months equal to the total value of the transferred property divided by the average cost of nursing home care to a private patient in that region of the state. (Currently $7,688 per month in central New York State and higher in other areas of New York). Under the new law, the penalty period doesn't start to run the first day of the month after the month of the transfer, it starts to run much later, in essence, the penalty period starts to run on the date you are both: 1. in the nursing home and 2. would otherwise qualify for Medicaid, if you hadn't made the transfers. So any transfers within 5 years of applying for Medicaid result in a penalty period preventing you from qualifying for Medicaid, calculated by taking the amount you transferred within 5 years and dividing it by $8,015 (in central NY). Source: Law Offices of D. Victor PellegrinoAttorney at Law, 2627 Genesee Street, Utica, New York 13501, Phone (315) 733-0417, Fax (315) 792-8075.
While the Community Spouse Resource Allowance (CSRA) can be as high as $109,560 for seniors with a large amount of assets, this higher CSRA results in the payment of more of your assets for nursing home costs.
It is important to understand that under New York law:
1. A spouse is charged with legal responsibility for the other spouse's nursing home costs. This means that the income and resources of the healthy spouse are considered as available to the Medicaid applicant spouse who is going into a nursing home and will be considered in determining if that spouse qualifies for Medicaid, and
2. If the healthy spouse has assets in excess of $74,820, those excess assets must be spent on medical care until the healthy spouse's assets are down to $74,820, and
3. If the healthy spouse's monthly income is more than $2,739 per month, the local Social Services Department will normally require 25% of the excess income to be spent on the nursing home costs of the spouse in the nursing home.
4. If the total income of both spouses does not exceed $2,739 per month, all of the total income can go to the healthy spouse, even if their spouse is in a nursing home.
5. The healthy spouse can refuse to support the spouse in the nursing home, but then the Department of Social Services has the right to sue the healthy spouse to recover money it pays for the nursing home costs of the spouse in the nursing home. Doing what is called a "spousal refusal" may make sense in certain situations because the Medicaid rate is less than the private pay rate.
5. Q. HOW MUCH INCOME CAN I MAKE AND QUALIFY FOR MEDICAID
A. Any person over 64 whose net income is less than $767 per month, plus an unearned income credit of $20 ($1,117 for a couple) per month, plus an unearned income credit of $20 for some couples) has satisfied the income means test for SSI related Medicaid. A single individual residing in a nursing home is permitted only $50 per month as a personal needs allowance, plus assets of $13,800 ($20,100 for a couple) plus a burial reserve. (Caution: under New York's new Estate Recovery law, passed April 1, 2011, if the person on Medicaid has this $13,800 exempt amount or any lesser amount of money in a joint account at the time of death, Medicaid can get a lien on those funds at the time of the Medicaid recipients death. Therefore planning needs to be done after the Medicaid recipient is on Medicaid and before the Medicaid recipient passes away to protect even the $13,800 exempt amount from Medicaid's lien under the new law.) You can set up a trust with a funeral director to prepay funeral expenses and the money in the trust will not be counted as a resource for Medicaid as long as any money not spent on the funeral is turned over to the Medicaid upon the senior's death. Caution, at the current time, only the cost of the vault, burial container, opening and closing of the grave, plot, stone and casket are treated as exempt for the community spouse, as opposed to the Medicaid applicant. (Car and personal residence may be exempt.) The law provides that the spouse of an individual who has established his or her eligibility for Medicaid is entitled to a monthly income not to exceed $2,739 per month.
6.Q. CAN I TRANSFER MY ASSETS TO MY CHILDREN OR OTHER FAMILY MEMBERS JUST BEFORE I GO INTO A NURSING HOME?
A. LAW IN EFFECT AFTER FEBRUARY 8, 2006. There is a new law in effect after February 8th, 2006 that will change previous law drastically. The bottom line is that under the new law there is a five year look back period and any assets transferred within 5 years of you going into a nursing home and making a Medicaid application will disqualify you from receiving Medicaid until that penalty period has run. Under the old law before February 8th, 2006, there was a Thirty Six Month Rule (applicable to outright transfers) and a Sixty Month Rule (applicable to certain transfers in trust). Eligibility for medical benefits is denied for a period of time if the person going into the nursing home transferred assets for less than fair market value within thirty six or sixty months before his or her application for Medicaid benefits. Under the old law which applies to transfers made before February 8, 2006, the period of ineligibility begins the first day of the month following the month in which the resources were transferred and lasts for a number of months equal to the total value of the transferred property divided by the average cost of nursing home care to a private patient in that region of the state. (Currently $7,688 per month in central New York State and higher in other areas of New York). Under the new law, the penalty period doesn't start to run the first day of the month after the month of the transfer, it starts to run much later, in essence, the penalty period starts to run on the date you are both: 1. in the nursing home and 2. would otherwise qualify for Medicaid, if you hadn't made the transfers. So any transfers within 5 years of applying for Medicaid result in a penalty period preventing you from qualifying for Medicaid, calculated by taking the amount you transferred within 5 years and dividing it by $8,015 (in central NY). Source: Law Offices of D. Victor PellegrinoAttorney at Law, 2627 Genesee Street, Utica, New York 13501, Phone (315) 733-0417, Fax (315) 792-8075.
http://estateandelderlaw.com/ep_pg2.htm
Additional information on the Asset Limitation is specific to Georgia is:
Key Medicaid Information for Georgia for 2012
Protections for the Community Spouse
| Community Spouse Resource Allowance (CSRA): | Minimum: $113,640 Maximum: $113,640 |
| Increased CSRA: | Permitted, with fair hearing. |
| Annuities: | Actuarially sound annuities are permitted. |
| Monthly Maintenance Needs Allowance: | Minimum: $2,841 Maximum: $2,841 |
Transfers
| Average monthly cost of nursing home care according to state: | $4,916.55 |
| Has a Long-Term Care Partnership program been implemented? | Yes |
Income
| Is the state an income cap state? | Yes. |
Estate Recovery
| Has the state expanded the definition of estate beyond the probate estate? | Yes |
| Has the state included a hardship provision in its estate recovery plan? | Yes |
Home Equity Limit
| The state Medicaid program will not cover long-term care services for those with home equity above this limit, with certain exceptions. | $525,000 |
This information was kindly provided by Ruthann P. Lacey qualified elder law attorney in Tucker, GA.
Contact Ruthann at:
Ms. Ruthann P. Lacey
Company: Ruthann P. Lacey, P.C.
Address: 3541-E Habersham At Northlake
Tucker, GA 30084
Phone: (770) 939-4616
Fax: (770) 939-1758
Email: rlacey@elderlaw-lacey.com
Admit Date: 01/27/1993
Law School: Emory University
V. The Testate Estate ( Dying With A Will )
Last Will and Testament Law
CODE OF GEORGIA
Title 53. WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES Chapter 4. WILLS Article 1. GENERAL PROVISIONS
Definitions are at [1]
Current through Chapter 54 of the 2011 Special Session
Definitions are at [1]
A testator, by will, may make any disposition of property that is not inconsistent with the laws or contrary to the public policy of the state and may give all the property to strangers, to the exclusion of the testator's spouse and descendants.
A will shall take effect instantly upon the death of the testator however long probate may be postponed.
No particular form is necessary to constitute a will. To determine whether an instrument is a will, the test is the intention of the maker to be gathered from the whole instrument, read in light of the surrounding circumstances. If the intention is to convey a present interest, though the possession is postponed until after death, the instrument is not a will. If the intention is to convey an interest accruing and having effect only at death, the instrument is a will.
CODE OF GEORGIA
Title 53. WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES Chapter 4. WILLS Article 2. TESTAMENTARY CAPACITY
Current through Chapter 54 of the 2011 Special Session
(a) Every individual 14 years of age or older may make a will, unless laboring under some legal disability arising either from a want of capacity or a want of perfect liberty of action.
(b) An individual who has been convicted of a crime shall not be deprived of the power to make a will.
(a) Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.
(b) An incapacity to contract may coexist with the capacity to make a will.
(c) An insane individual generally may not make a will except during a lucid interval. A monomaniac may make a will if the will is in no way connected with the monomania. In all such cases, it must appear that the will expresses the wishes of the testator unbiased by the insanity or monomania with which the testator is affected.
(d) Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.
A will must be freely and voluntarily executed. A will is not valid if anything destroys the testator's freedom of volition, such as fraudulent practices upon the testator's fears, affections, or sympathies; misrepresentation; duress; or undue influence whereby the will of another is substituted for the wishes of the testator.
CODE OF GEORGIA
Title 53. WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES Chapter 4. WILLS Article 3. EXECUTION AND ATTESTATION
Current through Chapter 54 of the 2011 Special Session
(a) A will shall be in writing and shall be signed by the testator or by some other individual in the testator's presence and at the testator's express direction. A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator's will.
(b) A will shall be attested and subscribed in the presence of the testator by two or more competent witnesses. A witness to a will may attest by mark. Another individual may not subscribe the name of a witness, even in that witness's presence and at that witness's direction.
(c) A codicil shall be executed by the testator and attested and subscribed by witnesses with the same formality as a will.
Knowledge of the contents of a will by the testator is necessary to the validity of a will. If the testator can read, the testator's signature or acknowledgment of that signature is presumed to show such knowledge.
(a) Any individual who is competent to be a witness and age 14 or over may witness a will.
(b) If a witness is competent at the time of attesting the will, the subsequent incompetence of the witness shall not prevent the probate of the will.
(a) If a subscribing witness is also a beneficiary under the will, the witness shall be competent; but the testamentary gift to the witness shall be void unless there are at least two other subscribing witnesses to the will who are not beneficiaries under the will.
(b) An individual may be a witness to a will by which a testamentary gift is given to that individual's spouse, the fact going only to the credibility of the witness.
(a) At the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, a will or codicil may be made self-proved and the testimony of the witnesses in the probate regarding such will may be made unnecessary by the affidavits of the testator and the attesting witnesses made before a notary public. The affidavit and certificate provided in subsection (b) of this Code section shall be the only prerequisites of a self-proved will or codicil.
(b) The affidavit shall be evidenced by a certificate, affixed with the official seal of the notary public, that is attached or annexed to the will or codicil, in form and content substantially as follows:
STATE OF GEORGIA
COUNTY of ___________
Before me, the undersigned authority, on this day personally
appeared _______________________, ______________________, and
_______________________, known to me to be the testator and the
witnesses, respectively, whose names are subscribed to the annexed
or foregoing instrument in their respective capacities, and all of
said individuals being by me duly sworn, _______________________,
testator, declared to me and to the witnesses in my presence that
said instrument is the last will and testament or a codicil to the
last will and testament of the testator and that the testator had
willingly made and executed it as a free act and deed for the
purposes expressed therein. The witnesses, each on oath, stated
to me in the presence and hearing of the testator that the
testator had declared to them that the instrument is the
testator's last will and testament or a codicil to the testator's
last will and testament and that the testator executed the
instrument as such and wished each of them to sign it as a
witness; and under oath each witness stated further that the
witness had signed the same as witness in the presence of the
testator and at the testator's request; that the testator was 14
years of age or over and of sound mind; and that each of the
witnesses was then at least 14 years of age.
_______________________
Testator
_______________________
Witness
_______________________
Witness
Sworn to and subscribed before me by _______________________,
testator, and sworn to and subscribed before me by
_______________________ and _______________________, witnesses,
this ______ day of ______________, ____.
(SEAL)
(Signed)______________________________
(Official Capacity of Officer)
(c) A self-proved will or codicil may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently from a will or codicil that is not self-proved. In particular, without limiting the generality of the foregoing sentence, a self-proved will or codicil may be contested, revoked, or amended in exactly the same fashion as a will or codicil that is not self-proved.
CODE OF GEORGIA
Title 53. WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES Chapter 2. DESCENT AND DISTRIBUTION Article 1. GENERAL PROVISIONS
Current through Chapter 54 of the 2011 Special Session
(a) As used in this Code section, the term:
(1) "Abandon" means that a parent of a minor child, without justifiable cause, fails to communicate with the minor child, care for the minor child, and provide for the minor child's support as required by law or judicial decree for a period of at least one year immediately prior to the date of the death of the minor.
(2) "Abandonment" means the act of abandoning.
(3) "Minor child" means a person who is less than 18 years of age.
(b) For purposes of this Code section:
(1) Children of the decedent who are born after the decedent's death are considered children in being at the decedent's death, provided they were conceived prior to the decedent's death, were born within ten months of the decedent's death, and survived 120 hours or more after birth; and
(2) The half-blood, whether on the maternal or paternal side, are considered equally with the whole-blood, so that the children of any common parent are treated as brothers and sisters to each other.
(c) Except as provided in subsection (d) of this Code section, when a decedent died without a will, the following rules shall determine such decedent's heirs:
(1) Upon the death of an individual who is survived by a spouse but not by any child or other descendant, the spouse is the sole heir. If the decedent is also survived by any child or other descendant, the spouse shall share equally with the children, with the descendants of any deceased child taking that child's share, per stirpes; provided, however, that the spouse's portion shall not be less than a one-third share;
(2) If the decedent is not survived by a spouse, the heirs shall be those relatives, as provided in this Code section, who are in the nearest degree to the decedent in which there is any survivor;
(3) Children of the decedent are in the first degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased child taking, per stirpes, the share that child would have taken if in life;
(4) Parents of the decedent are in the second degree, and those who survive the decedent shall share the estate equally;
(5) Siblings of the decedent are in the third degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased sibling taking, per stirpes, the share that sibling would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no sibling survives the decedent, the nieces and nephews who survive the decedent shall take the estate in equal shares, with the descendants of any deceased niece or nephew taking, per stirpes, the share that niece or nephew would have taken if in life;
(6) Grandparents of the decedent are in the fourth degree, and those who survive the decedent shall share the estate equally;
(7) Uncles and aunts of the decedent are in the fifth degree, and those who survive the decedent shall share the estate equally, with the children of any deceased uncle or aunt taking, per stirpes, the share that uncle or aunt would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no uncle or aunt of the decedent survives the decedent, the first cousins who survive the decedent shall share the estate equally; and
(8) The more remote degrees of kinship shall be determined by counting the number of steps in the chain from the relative to the closest common ancestor of the relative and decedent and the number of steps in the chain from the common ancestor to the decedent. The sum of the steps in the two chains shall be the degree of kinship, and the surviving relatives with the lowest sum shall be in the nearest degree and shall share the estate equally.
(d) Except as provided in Code Sections 19-7-1 and 51-4-4 for the right of recovery for the wrongful death of a child, when a minor child dies without a will, a parent who willfully abandoned his or her minor child and has maintained such abandonment shall lose all right to intestate succession to the minor child's estate and shall not have the right to administer the minor child's estate. A parent who has been deprived of the custody of his or her minor child under an order of a court of competent jurisdiction and who has substantially complied with the support requirements of the order shall not be barred from inheriting from the minor child's estate.
(e) For cases in which abandonment is alleged, the moving party shall file a motion with the probate court requesting the judge to determine the issue of abandonment and shall serve all parties as set forth in subsection (f) of this Code section. A hearing shall be conducted and all parties shall have the opportunity to present evidence regarding the party's relationship with the decedent. The burden of proof to show an abandonment is on the person asserting the abandonment by clear and convincing evidence.
(f) All parties to a motion filed pursuant to subsection (e) of this Code section shall be served in accordance with Chapter 11 of this title. If a party cannot be personally served and the party's interest in an estate is subject to forfeiture pursuant to subsection (d) of this Code section, the judge shall appoint a guardian ad litem for the party. If a party cannot be personally served, the citation shall also be published in the newspaper in which sheriff's advertisements are published in the county where the party was last known to reside.
(g) In the event that a parent is disqualified from taking a distributive share in the estate of a decedent under subsection (d) of this Code section, the estate of such decedent shall be distributed in accordance with subsection (c) of this Code section as though the parent had predeceased the decedent.
Cite as O.C.G.A. § 53-2-1
The rights of inheritance of a child born out of wedlock shall be as follows:
(1) A child born out of wedlock may inherit in the same manner as though legitimate from or through the child's mother, the other children of the mother, and any other maternal kin;
(2)(A) A child born out of wedlock may not inherit from or through the child's father, the other children of the father, or any paternal kin by reason of the paternal kinship, unless:
(i) A court of competent jurisdiction has entered an order declaring the child to be legitimate, under the authority of Code Section 19-7-22 or such other authority as may be provided by law;
(ii) A court of competent jurisdiction has otherwise entered a court order establishing paternity;
(iii) The father has executed a sworn statement signed by him attesting to the parent-child relationship;
(iv) The father has signed the birth certificate of the child; or
(v) There is other clear and convincing evidence that the child is the child of the father.
(B)(i) Subparagraph (A) of this paragraph notwithstanding, a child born out of wedlock may inherit from or through the father, other children of the father, or any paternal kin by reason of the paternal kinship if evidence of the rebuttable presumption of paternity described in this subparagraph is filed with the court before which proceedings on the estate are pending and the presumption is not overcome to the satisfaction of the trier of fact by clear and convincing evidence.
(ii) There shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity. Parentage-determination genetic testing shall include, but not be limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA) probes.
(C) If any one of the requirements of divisions (i) through (v) of subparagraph (A) of this paragraph is fulfilled, or if the presumption of paternity set forth in subparagraph (B) of this paragraph shall have been established and shall not have been rebutted by clear and convincing evidence, a child born out of wedlock may inherit in the same manner as though legitimate from and through the child's father, the other children of his or her father, and any other paternal kin;
(3) In distributions under this Code section, the children of a deceased child born out of wedlock shall represent that deceased child.
(a) The mother of a child born out of wedlock, the other children of the mother, and other maternal kin may inherit from and through the child born out of wedlock in the same manner as though the child were legitimate.
(b) The father of a child born out of wedlock, the other children of the father, and other paternal kin may inherit from and through the child born out of wedlock in the same manner as if the child were legitimate if:
(1) A court of competent jurisdiction has entered an order declaring the child to be legitimate under the authority of Code Section 19-7-22 or such other authority as may be provided by law;
(2) A court of competent jurisdiction has otherwise entered a court order establishing paternity;
(3) The father has, during the lifetime of the child, executed a sworn statement signed by the father attesting to the parent-child relationship;
(4) The father has, during the lifetime of the child, signed the birth certificate of the child; or
(5) The presumption of paternity described in division (2)(B)(ii) of Code Section 53-2-3 has been established and has not been rebutted by clear and convincing evidence.
An individual conceived by artificial insemination and presumed legitimate in accordance with Code Section 19-7-21 shall be considered a child of the parents and entitled to inherit under the laws of intestacy from the parents and from relatives of the parents, and the parents and relatives of the parents shall likewise be entitled to inherit as heirs from and through such individual.
An individual who is related to the decedent through two or more lines of relationship is entitled to only a single share based on the relationship entitling that individual to the largest share under the laws of intestacy.
(a) Upon the death of an intestate decedent who is the owner of any interest in real property, the title to any such interest which survives the intestate decedent shall vest immediately in the decedent's heirs at law, subject to divestment by the appointment of an administrator of the estate.
(b) The title to all other property owned by an intestate decedent shall vest in the administrator of the estate for the benefit of the decedent's heirs and creditors.
(c) Upon the appointment of an administrator, the title to any interest in real property which survives the intestate decedent shall vest in the administrator for the benefit of the heirs and creditors of the decedent, and title to such property shall not revest in the heirs until the administrator assents to such revesting. For purposes of this Code section, the assent of the administrator shall be proved in the manner set out in Code Section 53-8-15.
(d) Upon the appointment of an administrator, the right to the possession of the whole estate is in the administrator, and, as long as administration continues, the right to recover possession of the estate from all other persons is solely in the administrator. The administrator may recover possession of any part of the estate from the heirs at law or purchasers from them; but, in order to recover real property, it is necessary for the administrator to show, upon the trial, either that the property which is the subject of the action has been in the administrator's possession and without the administrator's consent is held by the defendant at the time of bringing the action or that it is necessary for the administrator to have possession for the purpose of paying the debts, making a proper distribution, or for other purposes provided for by law. An order for sale or distribution, granted by the judge of the probate court after notice to the defendant, shall be conclusive evidence of either fact.
(e) If an order has been entered under Code Section 53-2-41 that no administration is necessary, or if the administrator has assented to the vesting of title in the heirs, the heirs may take possession of the property or may sue for possession of the property in their own right.
(a) When the spouse of an intestate decedent dies intestate and without ascertainable heirs within six months of the decedent's death, any undistributed property of the decedent to which the spouse had been entitled prior to the spouse's death shall not escheat but shall be distributed to the heirs of the decedent who would have inherited the property under the intestacy laws if the spouse had predeceased the decedent.
(b) The nonexistence of heirs of the spouse may be determined by publication as provided in Code Section 53-2-51. If no heir of the spouse appears, the property, less the expenses of the proceedings to determine the nonexistence of heirs, shall be paid over as provided in subsection (a) of this Code section.
VII. TAX CONSIDERATIONS: THE STEP-UP BASIS RULE
What is the “step-up in basis” rule?
In general, when you sell an asset that has risen in value, you pay taxes on the gain. For assets like stocks, the “capital gain” is generally calculated as the difference between the purchase and sale price.For example, if you buy shares in a company for $100 and sell them for $300, you have $200 in capital gain. The original purchase price, $100, is called your “basis” in the shares.
But there is a special rule for inherited property. Here’s how it works: If you inherit a stock from your late aunt and later sell it, you are taxed on the difference between what you sold it for and what the stock was worth when Auntie died.
Let’s say Auntie bought the stock a long time ago for $1,000 and its value climbed to $50,000 during her lifetime. When you inherit the stock, your “basis” is the stock’s fair-market value upon Auntie’s death, or $50,000, rather than the $1,000 she paid for it.
That step-up in basis means that when you sell the stock now, you’ll only pay taxes on any gain above $50,000 that occurred while you held the stock.
Since Auntie held the stock until she passed away, she never “realized” the $49,000 in gain, and therefore never paid taxes on it either. So the step-up in basis rule means that $49,000 goes permanently untaxed. Source: Seth Hanlon. Center for American Progress. February 16, 2011.
See, 28 USC Sec. 1014 Basis of Property Acquired from a Decedent
(a) In general
Except as otherwise provided in this section, the basis of property in the hands of a person acquiring the property from a decedent or to whom the property passed from a decedent shall, if not sold, exchanged, or otherwise disposed of before the decedent’s death by such person, be—
(2)in the case of an election under either section 2032 orsection 811(j) of the Internal Revenue Code of 1939 where the decedent died after October 21, 1942, its value at the applicable valuation date prescribed by those sections,
(4)to the extent of the applicability of the exclusion described in section 2031(c), the basis in the hands of the decedent.
VIII. CONCLUSION&&&&&&&&&&&&&
ENDNOTES
[1]
OCGA § 53-1-2. Definitions [Associated with Wills Trusts and Estates ]
As used in this chapter and Chapters 2 through 11 of this title, the term:
(1) "Administrator" means any person appointed and qualified to administer an intestate estate, including an intestate estate already partially administered by an administrator and from any cause unrepresented.
(2) "Administrator with the will annexed" means any person, other than an executor, appointed and qualified to administer a testate estate, including a testate estate already partially administered and from any cause unrepresented.
(3) "Beneficiary" means a person, including a trust, who is designated in a will to take an interest in real or personal property.
(4) "Codicil" means an amendment to or republication of a will.
(5) "County administrator" means any individual or individuals appointed by the probate court of the county and qualified to represent an estate that is unrepresented and unlikely to be represented.
(6) "Descendants" means the lineal descendants of an individual including those individuals who are treated as lineal descendants by virtue of adoption.
(7) "Executor" means any person nominated in a will who has qualified to administer a testate estate, including a person nominated as alternative or successor executor.
(8) "Guardian" means the guardian ad litem or representative described in Code Section 53-11-2 who represents one or more parties to a probate court proceeding who are not sui juris, are unborn, or are unknown.
(9) "Heirs" means those one or more individuals who survive the decedent and are determined under the rules of inheritance to take the property of the decedent that is not disposed of by will.
(10) "Nominated executor" means any person nominated in the will to serve as executor who has not yet qualified to serve as executor.
(11) "Person" means an individual, corporation, partnership, association, joint-stock company, business trust, unincorporated organization, limited liability company, or two or more persons having a joint or common interest, including an individual or a business entity acting as a personal representative or in any other fiduciary capacity.
(12) "Personal representative" means any administrator, administrator with the will annexed, county administrator, or executor.
(13) "Qualified" means that a personal representative has taken the oath, posted any required bond, and been issued letters of administration or letters testamentary, as provided in this title.
(14) "Sui juris" means an individual is age 18 or over and not suffering from any legal disability.
(15) "Temporary administrator" means any person granted temporary letters of administration upon an unrepresented estate.
(16) "Testamentary gift" means the interest in real or personal property which a beneficiary is designated to take in a will.
(17) "Will" means the legal declaration of an individual's testamentary intention regarding that individual's property or other matters. Will includes the will and all codicils to the will.
Miscellaneous:
Lord Neaves 1800 - 1876. High Court of Scotland (Court of Session or The Supreme Court of Scotland)
Ye lawyers who live upon litigants' fees,
And who need a good many to live at your ease,
Grave or gay, wise or witty, whate'er your degree,
Plain stuff or Queen's Counsel, take counsel of me:
When a festive occasion your spirit unbends,
You should never forget the profession's best friends;
So we'll send round the wine, and a light bumper fill
To the jolly testator who makes his own will.
And who need a good many to live at your ease,
Grave or gay, wise or witty, whate'er your degree,
Plain stuff or Queen's Counsel, take counsel of me:
When a festive occasion your spirit unbends,
You should never forget the profession's best friends;
So we'll send round the wine, and a light bumper fill
To the jolly testator who makes his own will.
He premises his wish and his purpose to save
All dispute among friends when he's laid in the grave;
Then he straightway proceeds more disputes to create
Than a long summer's day would give time to relate.
He writes and erases, he blunders and blots,
He produces such puzzles and Gordian knots,
That a lawyer, intending to frame the thing ill,
Couldn't match the testator who makes his own will.
All dispute among friends when he's laid in the grave;
Then he straightway proceeds more disputes to create
Than a long summer's day would give time to relate.
He writes and erases, he blunders and blots,
He produces such puzzles and Gordian knots,
That a lawyer, intending to frame the thing ill,
Couldn't match the testator who makes his own will.
Testators are good, but a feeling more tender
Springs up when I think of the feminine gender!
The testatrix for me, who, like Telemaque's mother,
Unweaves at one time what she wove at another;
She bequeaths, she repeats, she recalls a donation,
And ends by revoking her own revocation;
Still scribbling or scratching some new codicil,
Oh! success to the woman who makes her own will.
Springs up when I think of the feminine gender!
The testatrix for me, who, like Telemaque's mother,
Unweaves at one time what she wove at another;
She bequeaths, she repeats, she recalls a donation,
And ends by revoking her own revocation;
Still scribbling or scratching some new codicil,
Oh! success to the woman who makes her own will.
'Tisn't easy to say, 'mid her varying vapors,
What scraps should be deemed testamentary papers.
'Tisn't easy from these her intention to find,
When perhaps she herself never knew her own mind.
Every step that we take, there arises fresh trouble:
Is the legacy lapsed? Is it single or double?
No customer brings so much grist to the mill
As the wealthy old woman who makes her own will.
The law decides questions of meum and tuum,
By kindly consenting to make the thing suum;
The Aesopian fable instructively tells
What becomes of the oysters, and who gets the shells;
The legatees starve, but the lawyers are fed;
The Seniors have riches, the Juniors have bread;
The available surplus of course will be nil,
From the worthy testators who make their own will.
What scraps should be deemed testamentary papers.
'Tisn't easy from these her intention to find,
When perhaps she herself never knew her own mind.
Every step that we take, there arises fresh trouble:
Is the legacy lapsed? Is it single or double?
No customer brings so much grist to the mill
As the wealthy old woman who makes her own will.
The law decides questions of meum and tuum,
By kindly consenting to make the thing suum;
The Aesopian fable instructively tells
What becomes of the oysters, and who gets the shells;
The legatees starve, but the lawyers are fed;
The Seniors have riches, the Juniors have bread;
The available surplus of course will be nil,
From the worthy testators who make their own will.
You had better pay toll when you take to the road,
Than attempt by a by-way to reach your abode;
You had better employ a conveyancer's hand
Than encounter the risk that your will shouldn't stand.
From the broad beaten track when the traveler strays,
He may land in a bog or be lost in a maze;
And the law, when defied, will avenge itself still
On the man and the woman who make their own will.
Than attempt by a by-way to reach your abode;
You had better employ a conveyancer's hand
Than encounter the risk that your will shouldn't stand.
From the broad beaten track when the traveler strays,
He may land in a bog or be lost in a maze;
And the law, when defied, will avenge itself still
On the man and the woman who make their own will.
& & &
“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world.”
Dickens, Charles, BLEAK HOUSE, Bradbury & Evans, London (1853).
Dickens, Charles, BLEAK HOUSE, Bradbury & Evans, London (1853).
