What Happens to Your Minor Children If You Die Without a Will in Georgia

What Happens to Your Kids If You Die Without a Will in Georgia

If you die without a will, and your child’s other legal parent is alive, that parent generally keeps custody. Georgia law treats this as the default. This comes from O.C.G.A. § 19-9-2. A court will only override it for a real reason, like abandonment or unfitness.

If both legal parents are gone, a Georgia probate court steps in and appoints a guardian. Georgia law lists a preference order for who that should be, starting with your child’s own choice if they are 14 or older, then the nearest adult relative. This comes from O.C.G.A. § 29-2-16. But the judge is not bound by that order. The court looks at who can actually give your child a stable home.

Here is the part most articles skip. This decision happens in one specific county probate court, not a statewide office. Which court, and what it costs to file there, depends on where your family lives. That is what the rest of this page covers.

Why This Matters More Than the Legal Definition

If you are reading this, you are probably picturing a worst case. That is normal. It is not an overreaction. Nobody wants a judge who has never met their family to decide who raises their kids.

You are also not behind for not having this handled yet. Most parents put it off. Nobody ever laid out, in plain terms, what actually happens and what it actually costs to fix it. That is what this page does. See our full guide to estate planning for Georgia families for every family situation this covers, and our breakdown of what estate planning costs a Georgia family with minor children for the price of fixing it up front.

Georgia Law Requires a Will to Name a Guardian

In Georgia, only a will can legally name a guardian for your minor children. A trust cannot do this, no matter how well it is written. This comes from Georgia law, O.C.G.A. § 29-2-4. It says a parent may nominate a guardian for their minor child only by will. This role has a specific legal name: a testamentary guardian.

Here is how it works. You file the will with the probate court. If the person you named agrees to serve, and nobody objects, the court approves them without a hearing. If someone does object, the judge decides based on real evidence, not just a personal preference. See our real cost breakdown for a Georgia will for what a will alone actually costs.

Which County Probate Court Handles This for Your Family

Georgia guardianship cases get filed in one county’s probate court. It is the county where the child lives, not a statewide office. For most Atlanta-area families, that means one of four courts: Fulton, DeKalb, Gwinnett, or Cobb County Probate Court.

These four courts do not run this process the same way. The forms, the fees, and even how a guardian nomination gets handled can differ from one county to the next. If you live in Atlanta or Johns Creek, your case goes through Fulton County. In Decatur and the rest of DeKalb County, it’s the DeKalb County Probate Court. In Duluth and Peachtree Corners, it’s Gwinnett County. In Marietta, it’s Cobb County.

What It Actually Costs to File, County by County

These are the real filing fees each court charges, straight from each court’s own current fee schedule. Filing fees are only one piece of the bill. See what the whole guardianship case costs once attorney fees, bond, and yearly filings are counted.

DeKalb County costs almost twice as much as Gwinnett County for the same filing. DeKalb also charges extra for sheriff service and for publication. DeKalb requires cash for these filings. Cobb County has a fee waiver for families who cannot pay. It is called an Affidavit of Indigency.

Fulton County’s Fees Just Changed

If you live in Fulton County, the numbers above are new. Fulton County’s guardianship and conservatorship fees changed on January 1, 2026. This happened under a new state law, Senate Bill 232. If you read an older article about this, or talked to someone a year ago, the price they gave you is probably out of date.

Fulton County also runs this process differently day to day. The court requires an appointment for most minor guardianship matters. Walk-ins are only accepted on Wednesdays. Your child has to be present. If the court wants a closer look at the case, it can appoint a Guardian ad Litem to investigate. Fulton County’s own fee schedule lists a $200 fee to request one. In a more contested case, a Guardian ad Litem’s own investigation can add real cost on top of that, often in the thousands of dollars, depending on how complex the case gets.

Gwinnett Handles an Already-Named Guardian Differently

Gwinnett County has a real shortcut. Say a parent already named a guardian in their will. Gwinnett does not require a second, separate filing for that. The court handles it inside the same filing that probates the will.

This is exactly why naming a guardian in a valid will matters. It is not just a formality. In Gwinnett specifically, it can mean one court filing instead of two.

Your Child’s Inheritance Is a Separate Problem

Naming a guardian answers who raises your kids. It does not answer who controls their money.

If your children inherit more than $25,000, Georgia law requires a court-appointed conservator to manage the money. Naming a guardian is not enough. This is a separate requirement, O.C.G.A. § 29-3-1. It applies even if the guardian raising your kids is someone you fully trust. The conservator answers to the court for how the money gets spent.

It gets more restrictive at 18. Georgia law requires the conservator to hand over whatever money is left, all at once, the moment your child turns 18. This comes from O.C.G.A. § 29-3-64. There is no gradual release built in. A revocable living trust is the only way to spread that money out on a schedule you choose, instead of the state’s default.

Georgia has a separate law called Year’s Support. It can let your spouse and minor children claim up to 12 months of living expenses from the estate. This gets paid before most other debts. See our guide to estate planning for blended families in Georgia for how this works.

What to Do Next

You do not need to know which county rules apply to your exact situation before reaching out. That is something to walk through together.

Your first call is free, about 15 minutes, and happens by phone with Shawn. If you move forward, your next step is the Design Meeting with Melissa, which is credited toward your plan.

Melissa will go over your family’s real situation on that call. She will explain what this means for your county. And what it means for your family.