Georgia Wills

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Writing a Georgia Will

A guide to Georgia Will requirements, probate and intestacy; what you need to make a legal Will in Georgia. The law governing Georgia Wills is set forth in Title 53 Wills, Trusts and Administration of Estate.

Who may make a Will?

Every person may make a Georgia Last Will and Testament as long as he/she has capacity (age and mental) and perfect liberty of action (not under any duress, undue influence etc.). § 53-4-10(a) In Georgia, the minimum age to make a Will is 14 (other states require you to be at least 18 years old). § 53-4-10(a) As to mental capacity, see “Contesting a Georgia Will” below for more information. The statute also points out that a person may make a Georgia Will even if they are convicted of a crime. § 53-4-10(b)

Formal Execution Requirements

A legal Will in Georgia needs to be:

  • In writing;

 

  • Signed by the testator (the maker);

 

 

  • Witnessed by two or more competent witnesses. § 53-4-20

 

 

This means the testator and both witnesses should all be present at the same time and sign in the presence of each other. 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. § 53-4-20(a) The person making a Georgia Will must have knowledge of its contents. § 53-4-21

Who may be a witness?

Any person who is competent to be a witness and is at least 14 years old may attest a Georgia Last Will. § 53-4-22 Do not use any beneficiary or a spouse of any beneficiary as a witness. Here’s why: any gift made to a witness is void (unless there are two other competent witnesses). Also, if a spouse of a beneficiary witnesses a Georgia Will, this may affect that witness’s credibility in court and may therefore affect probate of the Will. § 53-4-23 It’s always advisable to use independent witnesses who (neither themselves nor their spouse) are benefiting under the Will. This helps remove any question of duress, fraud or undue influence on the testator’s free volition.

How can I revoke or change my Will?

You may revoke (cancel) or amend your Will at any time prior to your death. § 53-4-40 You may change a Georgia Willby executing a Codicil. This is a document which refers to your Will and makes appropriate changes. It must be executed with the same formalities as a Will. It means there are two documents to interpret and probate. Alternatively, a better method is to make a new Will and cancel your old one. To revoke a Will, you need to:

  • Make a new Will which expressly revokes all previous Wills; § 53-4-42 or

 

  • Destroy or obliterate the former Will. § 53-4-44

 

Lawyers suggest both methods (express revocation in a new Will and actual destruction of the former Will).

Does marriage cancel my Will?

No. If you made a Georgia Last Will prior to the event and the Will does not make provision in contemplation of marriage, then your spouse is only entitled to a statutory share of your estate. The share is based on the laws of intestacy (as though you died without a valid Will). After payment of your spouse’s intestate share, the remainder of your assets are distributed in accordance with your Will. § 53-4-48 You should make a new Will as soon as you become married to ensure your property passes in accordance with your wishes.

Does divorce revoke my Georgia Will?

No. Your Will remains valid. Only the provisions which relate to your spouse become void. Your Will is treated as though your former spouse died before you (and any gifts made to your former spouse will pass according to the remainder of your Will). § 53-4-49 Attorneys advise updating your Georgia Last Will and Testament immediately after a divorce to ensure the document contains your clear and current intentions.

Contesting a Georgia Will

Not happy with someone’s Will? See how you can object to a Georgia Last Will and Testament, the time limits that apply and other requirements. Like many states, Georgia does not allow you to contest a Will simply because you believe you should have received a larger share. You can only object to the validity of the Will on valid grounds. Valid grounds include that the testator did not have sufficient mental capacity at the time of making the Will, involvement of fraud or forgery and that the Will was not signed or witnessed properly.

Testamentary Capacity

The person making a Georgia Willmust have sufficient mental capacity. This requires the testator to have a ‘decided and rational desire regarding the disposition of his property’. § 53-4-11 The revised probate code of 1998 does not go any further to explain what a decided and rational desire is. The pre-1998 probate code made the following distinctions:

  • Decided, as opposed to the wavering, vacillating fancies of a distempered intellect;

 

  • Rational, as opposed to:
    • The ravings of a madman;

     

  • The silly pratings of an idiot
  • The childish whims of imbecility; or
  • The excited vagaries of a drunkard. § 53-2-21 (pre-1998)

 

 

The statute states that weakness of intellect resulting from advancing age or eccentricity of habit or thought does not mean the person has incapacity to make a Will. § 53-4-11(d). The pre-1998 code went further by stating: if the weakness amounts to imbecility, that’s when testamentary capacity is lacking. Where there is doubt, the court can look to whether the disposition in the Will was reasonable or not. § 53-2-25 (pre-1998). An insane person may only make a Georgia Last Will during a lucid interval. If he/she has ‘monomania’, then the Will is only valid if it did not result from the disease. This can be shown if the Will appears to speak the wishes of the testator, unbiased by the mental disease with which he is affected. § 53-4-11(c)

Free Will

Another reason for contesting a Georgia Last Will and Testament is that the testator did not have freedom of volition (ie: that the Will was not freely and voluntarily executed). This applies if there are fraudulent practices upon the testator’s fears, affections, or sympathies; misrepresentation; duress; or undue influence whereby the will of another is substituted for the wishes of the testator. § 53-4-12

Time Limit

If the Georgia Will was probated in common form, it becomes conclusive on all parties in interest four years from the time of probate. Minor heirs have four years from the time they reach the age of majority. § 53-5-19 If the Georgia Last Will & Testament was probated in solemn form, then you may only contest the Will if you did not receive due notice. The same time limit applies as though the Will was probated in common form. If you did receive proper notice, then the probated Will is conclusive and you cannot commence an action to contest it. § 53-5-20

Georgia Wills Probate

Information on how to probate a Georgia Last Will and Testament, time limits, rights and responsibilities of executor and beneficiaries. There are two ways of probating a Will in Georgia: common or solemn form.

Common Form of Probate

This is the ‘informal’ type of probate. It is available where the original Georgia Will is in possession and has been signed and witnessed. No notice is required to be given to any person (only after the Will has been accepted). A petition needs to be filed with the court requesting probate in common form and issuance of letters testamentary (appointing the executor named in the Will as personal representative). The Georgia Last Will may be proved using one witness’s testimony. If the Will is self-proved, then no further witness testimony is required from the subscribing witnesses. § 53-5-17 Once the court is satisfied with the petition, it will grant probate of the Will in common form.

Solemn Form of Probate

This is a formal probate proceeding where validity of the Will is decided conclusively. A petition to probate a Georgia Willin solemn form must be filed with the court. Notice of the petition must be given to all heirs and beneficiaries personally or by publication in accordance with section 53-5-22. If the witnesses are alive and in the jurisdiction, then they must either provide testimony by being examined in person or by responding in writing to written interrogatories under oath before a notary public. The court has the power to compel the attendance of a witness. § 53-5-23 If no caveat is filed, then only one witness needs to provide testimony orally or in writing. If the Will is self-proved then no testimony is required unless rebutted. § 53-5-21 The court will accept probate in solemn form and will issue letters testamentary to the executor if:

  • All heirs acknowledge service of the petition and notice and assent to probate; and

 

  • If there are no other proceedings pending in Georgia with respect to the probate of another purported Will of the decedent. § 53-5-21(2)

Who can offer a Will for probate?

Only the executor may offer a Georgia Will for probate. If the executor fails to do so within a reasonable time (or if no executor is named), then any interested person may petition for probate. § 53-5-2

Time Limits

A Georgia Last Will and Testamentcannot be offered for probate after five years from the later of:

  • Appointment of a personal representative; or

 

  • An order that no administration is necessary on the deceased estate. § 53-5-3

Filing the Georgia Will

The person who has a testator’s Last Will and Testament in their possession is under an obligation to file the original with the probate court with reasonable promptness. If the person withholds the Will, he/she may be fined and imprisoned until the Georgia Last Will and Testament is delivered. § 53-5-5

Georgia Estate Tax

Georgia’s estate tax is based on the federal estate tax. There is no inheritance tax in Georgia. The estate tax is payable by the estate before distribution to the beneficiaries in accordance with the Georgia Will. Individuals do not pay tax on their inheritance. The amount payable is based on the federal amount allowable as a credit for state death taxes. If the estate is required to file a federal return (Form 706), a copy of same must be filed with the Georgia department of revenue together with payment of the Georgia estate tax. There is no Georgia estate tax return form. If no federal estate tax return is required to be filed, then no filing is required with the department of revenue.

Excluding a Spouse or Child

The requirements for disinheriting your spouse or child from a Georgia Last Will and Testament are somewhat different to other states. A Georgia Will may bequeath the entire estate to strangers, to the exclusion of your spouse and descendants. § 53-4-1 However, there is a provision for support of your spouse and minor children.

Year’s Support

Your spouse and minor children are entitled to an allowance (in money or property) out of your estate for their support and maintenance for a period of 12 months following your death. § 53-3-1. The spouse may ask the court for a specified amount or property. If an objection is made, then the court decides the extent of the support sufficient to maintain the standard of living that the spouse and each minor child had prior to your death. § 53-3-7 If you try to provide your wife a nominal amount in your Georgia Will in lieu of the year’s support, your spouse has the right to choose to take under your Will or the statutory entitlement. § 53-3-3

Excluding Children

Just because your Georgia Last Will and Testament doesn’t mention your child does not mean that he/she is excluded. This is particularly the case where the child was born or adopted after you made your last Will. If that Will does not mention the child but leaves a provision for other children in the same class, then a court will presume that the after-born or after-adopted child should have been included. This also applies to children who are born within 10 months after your death. The omitted child receives a share of your estate as though you had died intestate (without a Will). § 53-4-48 If you wish to exclude family members from your Georgia Will, remember to update it after marriage, divorce, after you or your spouse become pregnant, adopt a child or give birth to a child. Consult an attorney for the appropriate wording to exclude your spouse or child. The lawyer may have other matters you may need to consider or attend to.

Dying without a Georgia Will

If you die without a valid Georgia Last Will and Testament, who are your heirs? How much does your spouse, children, parents or even grandparents receive?

If there is a spouse

If you have no children, then your spouse receives the whole estate. If you leave surviving descendants (children, grandchildren etc), your spouse and children all take an equal share. If any of your children die before you leaving descendants, their descendants will share equally the portion which their parent (the deceased child) would have received. However, your spouse must receive at least 1/3 of the estate.

Unmarried or Widowed

If you pass away without a legal Georgia Will, then your estate is distributed in the following order of priority:

  1. Firstly, to your children equally. Any deceased child’s children receive that child’s share per stirpes.

 

  • Shared equally between your parents or the survivor;

 

 

  • Your siblings or their descendants per stirpes. If there are no siblings, then your nieces and nephews share the estate equally (not per stirpes). Any deceased niece or nephew’s children take their parent’s share per stirpes;

 

 

  • Equally to your grandparents or the survivor;

 

 

  • Your uncles and aunts or their descendants;

 

 

  • If no heir claims under intestacy within 4 years, then the personal representative may petition the probate court for an order that the property escheats to the state of Georgia. § 53-2-51

 

Intestacy Rules – What do they mean for your family?

If you are a Georgia resident and pass away, then unless you made a valid Georgia Will, your property passes in accordance with the above intestacy rules. Below are some common examples. Intestacy calculation, wife died without a Georgia Will. Share of husband and children: Helen died leaving an estate of $300,000. She did not make a Will. She has two children to her husband Jack. Who gets what? Jack: $100,000, Jack & Helen’s children: $100,000 each. How a husband’s estate is distributed between spouse, children and stepchild on intestacy: Bill died leaving an estate of $300,000. He left behind his wife Jill, their 3 children & a child from a former partner but no will. Who gets what? Jill: $100,000, Jill & Bill’s 3 children: $50,000 each, Bill’s child from former partner: $50,000. Intestacy rules when wife dies leaving husband, child from former partner and no Georgia Will: Lauren died leaving $300,000 and no will. She left behind her husband Ralph and a child from a former partner. Who gets what? Ralph: $150,000, Lauren’s child: $150,000. Widowed grandmother’s intestate estate. How much do children and grandchildren get? Eleanor died without a will. Her estate is worth $300,000. She had 3 children with her husband (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), Granddaughter (single child): $100,000 (1/3), Grandsons (brothers): $50,000 each (share 1/3).

Georgia Will Forms

Writing a Will is the most important step you can take to manage what happens after your death. This document is best prepared by an attorney. If you wish to make a Will yourself, make sure to use the tools available on the internet including Will forms, Will templates and even Will software.

Note: Making a Will can be daunting. Before creating a Georgia Will you should obtain advice on:

  • Preparing and executing a simple Will
  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents) to help create a Will:

Georgia Will Form: Married with adult children
Georgia Will Form: Married with adult and/or minor children, includes a trust for minor children
Georgia Will Form: Married with no children

Georgia Will Form: Single with adult children
Georgia Will Form: Single with adult and/or minor children, includes a trust for minor children
Georgia Will Form: Single with no children

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