Legal Question in Wills and Trusts in Georgia
A will is written in Georgia by a widower with an adult child, and bequeaths his home and contents to that adult child, and includes a provision for his future wife which allows her to reside in the home after his death until she dies or no longer resides in the house, at which time the house and contents would go to his adult child. The Widower then marries a woman with money, possessions, and two adult children. The house is emptied of ALL contents, and the new wife's possessions are moved in. There are no prenups by either party. The widower never changes or ammends his will after they marry. Then, the widower dies. His widow dies five years later. There is no money remaining; only the house and contents. Does the will still apply as written, or did their combined property and possessions become joint property when they married in 2004, and therefore has to be sold and divided between their combined three adult children? Thanks.
2 Answers from Attorneys
Sadly the widower was woefully negligent in his affairs.
The will may have been revoked by the marriage. But regardless, a will cannot give what a p0erson no longeer has. So what he doesn't have he can't give.
And no, you don't get the wife's stuff. It is of course her separate property. (Georgia does NOT have community property).
Bear in mind the wife also may get the whole house as year's support, which comes ahead of the will, if that applies here.
The will is altered by the fact that the man married and by the fact that he disposed of assets. Since the will made no provision for the new wife, she would have certain elective rights, but as she is dead, they are waived if she did not exercise them.
Was the man's estate ever probated? It should have been done when he died. The wife would have gotten whatever she was entitled to receive under the elective share statutes. When the wife died, the wife's separate property would also pass as per her will or via intestacy to her children - there is no community property.
The question I have is whose name is on the deed to the residence? If the man put the wife's name on it with right of survivorship, then the house passed to the wife and it would be distributed in the same manner as her personal property. If the house was solely in the man's name, then the house would pass to his adult child.
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