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Georgia Last Will & Testament ("Will") Guides (Part 1)

What is a will?

A will, also know as a Last Will and Testament, is a legal document that directs how your property is distributed when you pass away. The person making a will is called a "testator." If you have property or assets at the time of your passing, the legal process for passing that property to your heirs is called probate. The probate court administers your affairs according to the state law and according to your intentions. In order to direct the probate court on how to administer your estate or assets, you must have a legally enforceable testamentary document. The most common testamentary document is a will. Read below for more information on the probate process and the requirements to make a will.

What is required to make a valid will in Georgia?

Georgia. The law governing Georgia Wills is set forth in Title 53 Wills, Trusts and Administration of Estate. The requirements for an individual to execute a will in Georgia, O.C.G.A. Title 53, are as follows:

  • you must be at least 14 years of age, (O.C.G.A.§ 53-4-10(a))
  • You must have testamentary capacity

    • This simply means that you must have mental capacity to execute your will.
  • you must have the intent to dispose of your property in the legal document,

    • This requires the testator to have a ‘decided and rational desire regarding the disposition of his property’. (O.C.G.A. § 53-4-11)
  • you must act freely and voluntarily in executing the will (i.e., no one has coerced or threatened you),

  • your will must be in writing,

  • You must sign the will,

    • Note:If the testator is unable to sign the Georgia Last Will & Testament, then another person may sign on his/her behalf. This must be done at express direction and in the presence of the testator. (O.C.G.A.§ 53-4-20(a)). The person making a Georgia Will must have knowledge of its contents. (O.C.G.A.§ 53-4-2).
  • Your must sign in your presence by at least two competent witnesses who attest to your signature, and

    • Note: Any person who is competent to be a witness and is at least 14 years old may attest a Georgia Last Will. (O.C.G.A.§ 53-4-22).
    • Note: Do not use any beneficiary or a spouse of any beneficiary as a witness. This may affect that witness’s credibility in court and may therefore affect probate of the Will. (O.C.G.A.§ 53-4-23).
  • Your signature must be notarized by a Georgia notary public.

What Does it Mean to Self-Prove my Georgia Will?

Self-proving a will means executing a document that attests to the validity and, in effect, proves the will to the court at the time that it is probated. The takes away the need for the witnesses to the will to testify before the court in order to attest to the validity of the will. The self-proving affidavit must be executed at the same time as signing your Will or you can self-prove an already existing Will. The requirements for the self-proving affidavit are the same as those for executing the will. Under certain situations the will can be challenged and must still be proved. This is subject is discussed in greater detail in a separate information paper.

What does an Executor (Personal Representative) Do?

This person is in charge of handling your affairs and administering your estate (or assets) when you pass away. If you do not appoint an executor in a legal will, then the court will appoint your executor (also known as an administrator). The probate court ultimately controls the process, but the executor is charged with the duties of actually carrying out the court’s orders regarding the estate.

Who needs a will?

We should all plan for what happens to our assets and how our affairs should be wrapped up when our time comes. Using a will to allocate your property and give instructions to those you leave behind is most important. Most importantly, anyone who has minor children needs a will. Generally, minor children cannot own property outright. If you want to leave your property to you minor children, you need to undertake planning to do so. This means establishing a guardian or trustee for the property to hold and manage the property for their benefit. Having a will makes certain that all of your property passes to your heirs in accordance with you wishes.

What Happens if I pass Away Without a Will?

This is known as dying “intestate". How your property is distributed and how your affairs are managed is determined by Georgia law. Generally, your property will be distributed to your immediate family. Unfortunately, this means that if you have minor children the court will determine how the property is held and managed and by whom. Also, your spouse and minor children may request a year’s support from the probate court (explained below), which has priority over other equitable distributions. Someone can petition to be executor and to administer your estate or the court can appoint someone. If you have minor children and you are the sole parent, then the court will determine who becomes the guardian of your children. This is just a broad summary of what happens when you pass away without a will. That is why it is so important to have a will to describe exactly your desires at the time of your passing. Much of this is true if you pass away and your will is invalid. That is why it is important to make certain that you follow the correct procedure in creating your will.

What property is distributed under a will?

Any assets that you own at the time of your death that is not subject to or capable of being passed by another legally authorized method. Other legally authorized methods can be property that changes hand pursuant to a contract or by operation of law. Typically, the assets that are distributed in a will are your tangible possessions, such as furniture, automobiles, clothing, jewelry, land, money, stocks, etc. Note: Many items such as bank accounts, insurance policies, 401(k) retirement plans, IRAs, etc., have pay-on-death designations or transfer-on-death designation, or death beneficiaries. There are other types of property that are legally held as joint owners with a right of survivorship that will or can pass outside of your will. Each individual asset must be examined individually to make this determination.

Who can receive property under a will?

Georgia law controls who can received property under your will. You can leave property directly to competent adults, trusts, organizations, etc., so long as it does not violate state law or public policy.

What are the other functions of a will?

A will allows you to make many decision regarding your property and affairs after you have passed away. A will can do much more than simply designate how your property will be distributed. Here are a few examples of what you can accomplish with your will:

  • As previously discussed, with a will, you decide how your estate will be distributed and you may dispose of your property as you choose. Without a will, your estate is distributed to your heirs, who are determined in accordance with state law.

  • Parents outline who should serve as the guardians of minor children in the even both parents pass away or are unable to care for the children.

  • You can direct that your property be held by a trust or trustee for the benefit of a minor or disabled child or disabled adult.

  • You can establish a life estate for someone, such as your spouse. (A life estate is basically, temporary ownership of property during one’s life, but you name the person to receive the property once that person passes away)

  • For some wealthy people, a will and other estate planning instruments are necessary to minimize the amount of estate taxes due to the Government.

  • Individuals can use a will combined with a simple trust to make certain that you take care of non-relatives or children from another relationship. This is a common situation for individuals with children from multiple relationships.

  • A will allows you choose who or what entity should serve as executor of your estate. (The role of the executor is discussed further below). It is important to note that, without a will, your beneficiaries would have to petition the court for an administrator to serve, which can be expensive and invite disagreement.

  • A will enables you to eliminate many unnecessary expenses and costs involved in the administration of an estate without a will.

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