Chula, GA Estate Planning Law Firms & Lawyers

If owned by her son, it depends on what his will says and if no will it passes by intestate which would pass to spouse first, unless he had children not his spouses, then she would only get a life estate.

My condolences to you on your loss. If your wife had her primary residence in Georgia at the time of her death, Georgia law will control most of her probate estate assets (except for any real estate she may have owned in another state - that state's laws will control the real estate). "Probate" estate assets would be assets your wife owned at her death and which did NOT pass to someone else under a right of survivorship or a beneficiary designation. Under Georgia law, if a person is married at her death, her probate estate will be distributed to her heirs, subject to any possible year's support claims. The estate assets must first be used to pay debts, administrative expenses, and taxes. The estate may also be subject to a Year's Support claim by the surviving spouse and any surviving minor children (under 18 years old). Year's Support is an amount which can be awarded to a surviving spouse or surviving minor child. The purpose is to provide the award recipient with enough assets from the estate to help that person survive for a year after the death. There's not a set amount or share for year's support: it is fact-dependent. If there are contesting parties who challenge the claim, and the claimant has a lot of income and resources of his own,  the award can be little or nothing. After any year's support claims, debts, administrative expenses, and taxes are paid, the heirs divide the rest as follows: if there is a spouse and at least one surviving child (adult or minor), the spouse and the child each take an equal share. However, the spouse gets at least 1/3, so if there are three or more children, the spouse gets 1/3 and each child gets an equal share of the other 2/3. If a child predeceased the deceased, then that child's own children would take his or her share, if there are any. No share is created for a child who predeceased the deceased and did not have any descendant of the child's own. "Probate" assets do not include assets which are payable to a designated beneficiary under a beneficiary designation, unless the estate is the beneficiary (such as life insurance, IRAs, 401k accounts, accounts held with a "POD" or "payable on death" designation, and securities held in "transfer on death" or "TOD" form). Probate assets also don't include the deceased's interest in assets which pass by rights of survivorship, which are assets held by the deceased and any other person(s) as "joint tenants." For bank or brokerage accounts, joint accounts are held as joint tenants by default, so unless "tenants in common" is stated on the account they pass by right of survivorship. For Georgia real estate, the default is tenants in common, so that unless the deed says "as joint tenants," "with rights of survivorship," or something very similar in addition to the names of the joint owners, the deceased's share of the real estate stays in her probate estate at her death. You need to consult an experienced estate attorney soon.  Do not delay, because you can lose your rights or your assets if you do.    

Depending upon the level of your father's capacity, it may be too late to obtain authority under a Power of Attorney. If your father has lost the ability to understand the effect of these sorts of estate planning documents, if he has lost the ability to enter into contracts and if he is "90% of the time" incoherent, that avenue might well be closed to him. Your alternative to affirmative incapacity planning by your father is often found in the guardianship and conservatorship proceedings of the jurisdiction that he resides in. Sounds like you'd have a pretty easy case to prove. Think of it this way: A POA is something that your father could have signed to provide for his own incapacity. Guardianships and conservatorships work like Court-initiated POAs the Court steps in to provide for your father largely because your father did not address this possibility in his own planning.