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Does a dying relative last wishes, spoken at bedside, mean anything legally even though they are not written in a will?

Jonesboro, GA |

a relative stated on death bed that they was giving some property to their siblings

Attorney Answers 4

Posted

Oral (nuncupative) wills used to be permitted under the pre-1998 code in Georgia, but are no longer permitted, so the language of the will is what matters.

Having said that, there may be some situations where all the heirs agree to do something different than what is in the will and a lawyer may find a way to do it. This is not necessarily simple (or even appropriate in some cases) and needs to be discussed between the executor and the lawyer he retains.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

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Posted

Spoken wills and bequests are worth the paper they are written on, so this would not be a valid way to transfer property, especially real estate. An executor or administrator of an estate can only abide by oral wishes of the decedent if all of the people who would otherwise have inherited the property agree to abide by these wishes. This can be done through probate, and can be very tricky. There may also be tax consequences if not done correctly, and the decedents debts will have to be paid before any property can be transferred at all. Therefore, if everyone agrees to do what the decedent stated, and I mean everyone, see a probate attorney about how to do it.

The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP hmgrmg@yahoo.com 53 W. Candler St. Or 718 Oak St. Winder, Ga. 30680 Gainesville, Georgia (770) 307-4899 (770) 538-0555 gadebtlaw.com hicksmasseyandgardner.com serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation

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Posted

The very short answer to your question is no, assuming the deceased had his or her primary residence in Georgia. As already pointed out by the first two respondents, if all of the heirs (or beneficiaries, if there is a Will but it just does not contain these "last wishes") agree to honor the spoken wishes, then they may be able to do so, but there is no requirement that they do so and there may be tax consequences. And the heirs/beneficiaries should really seek good legal advice before trying to carry out any transfers based on the decedent's spoken wishes.

This answer is not intended to provide you with specific legal advice regarding your situation, or to create any attorney-client relationship. The intent is only to provide general information. You should be aware that you cannot rely on this answer to provide you with any protection against tax penalties. You should always consult your own attorney in order to obtain legal advice.

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Posted

I agree with everything the other attorneys have said concerning oral wills and their absolute ineffectiveness under Georgia law. They are also correct that it is possible for all heirs and interested persons to come to a settlement agreement concerning administration of the estate. I will add, however, that it is possible to give property away prior to death and thus distribute property in an alternative way. Not knowing what actions your relative took or what she said, there is no way to determine whether she met the requirements based on what you have provided. To qualify as a gift, your relative would have had to have intended to make a present transfer of her interest in the property and have made some type of delivery of the object to the intended recipient. In limited cases where someone is on their death bed, a person can make what is known as a gift causa mortis of personal property. Such a deathbed gift has several specific elements that are hard to prove. I can't say that I've personally seen a true gift causa mortis, but there are cases out there that you can read about. Unless there are additional facts evidencing a gift during your relative's life, you will be stuck with the laws of intesacy, the relative's last valid will, or a settlement agreed upon by all the interested parties, whatever the case may be. Consulting an attorney to review the facts of your situation is advisable.

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