Care of Children When Parents Die

Authored By: Carl Vinson Institute
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Care of Children When Parents Die

This document tells you the following:

  • What is a will?
  • Why make a will?
  • What happens to your children and your property if you die without a will?
  • How do you make a will valid?
  • What conditions of wills exist?


If one parent of a child is dead, generally the other parent will have custody. Who takes care of the children if both parents die? The answer depends on whether or not the parents have left a will. A will is a written document witnessed by others. It states how a person's property is to be divided after he or she dies. The writer can also direct who should take care of his or her children. Without a will, the courts and state laws decide who gets what a person owns and who cares for their children.

Parents may name a person in their will to be responsible for their minor children. This person is called a testamentary guardian, "the guardian of the child's physical person." Testamentary guardianship is a form of child custody. If the person named in the will refuses or is not available to act in that capacity, the court may appoint someone else.

The court may also appoint a guardian of the child's property. A guardian of the property has the duty to use the child's property only for the benefit of the child. Also, the guardian must report about the property management to the county probate court. In Georgia, both the probate and juvenile courts have the authority to appoint guardians when a child has no surviving parents.


A. Inheriting Without a Will

If a person dies without a will, the person is said to have died intestate. Certain rules of inheritance known as intestacy laws apply. In effect, the legislature writes the deceased person's will because the person's property will be distributed according to the intestacy laws.

Following are some of Georgia's rules of inheritance that apply when a person dies intestate:

  • If the person has no children, the spouse who survives will inherit the entire estate.
  • If there are one or two children, the spouse and those children shall have an equal share of the estate. If there are more than two children, the spouse receives one third of the estate and the children divide the remaining two thirds.
  • If an unmarried and childless person dies without a will, that person's father and mother inherit equal portions.
  • If there is no mother or father, the order of inheritance is the brother(s) or sister(s) of the person who dies or their descendants. If there are no brothers or sisters or descendants of brothers or sisters, the grandparents of the person who dies, the person's aunts and uncles, and the person's cousins inherit-in that order. If there are no relatives, then the state will assume ownership of all property.

In Georgia, children born out of wedlock have been granted the same rights of inheritance from mothers as children born within a marriage. Also, mothers can now inherit from their children who have been born out of wedlock just as they can from children born within a marriage. However, the father of a child born out of wedlock cannot inherit from his child unless he has been established as the father in one of several ways as specified by Georgia law. Likewise, a child born out of wedlock cannot inherit from his or her father except under certain circumstances.

Inheritance is allowed if there is strong evidence of paternity and if the father treated the child as his own. The child may also inherit if genetic testing shows a 97 percent probability of paternity and the paternity is not successfully rebutted by other evidence.


B. About Wills

Making a Will

It is best to have a will prepared by a lawyer. In order to be enforced, a will must be made properly. It is required that a will be dated, and the signature must be properly witnessed by at least two people (three in some states) who do not inherit under the will. There are additional requirements.

If a person who has a valid will marries or has a child, the will is automatically void, with one exception. It is valid if it contains a paragraph saying that the will was made in contemplation of the upcoming change. Otherwise, after the change occurs, a new will is needed. Divorces are treated differently. If the party with the will divorces, the will remains valid. However, by law the ex-spouse does not receive any benefits.

It is wise to periodically review any will to be sure it is up to date. State laws may change. The family membership or property holdings may change.

Conditions of Wills

In Georgia, a will maker is not required to leave any property to a spouse or children. In other states, the spouse and children are automatically entitled to a specified amount. However, in Georgia, a person can disinherit the entire family with a valid will.

Although a person can disinherit his or her family, he or she cannot deprive them entirely. Whether a parent or spouse dies with or without a will, a spouse and dependent children in Georgia have a statutory right to support, although the support can be relatively modest.

* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase ator by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.

Last Review and Update: Jun 18, 2011