If you are considering writing a will, you should ensure that it meets the requirements of the law. Keep reading to find out the essential elements that make a will valid in Georgia.
Author: Paul Black
Paul’s experience as the son of two parents with big health challenges is what led him to the work he does today and gives him first-hand knowledge of the challenges that many caregivers and family members face. After graduation from GSU Law, Paul was chosen from dozens of applicants nationwide as one of three 2010-2011 Borchard Foundation Law & Aging Fellows. Paul has been named as a SuperLawyers “Rising Star” in the area of Estate Planning and as a member of Georgia’s “Legal Elite” by Georgia Trend magazine. Published on: May 02, 2022.
What Is a Will?
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A will, also known as a last will and testament, is a legal document that explicitly sets out what becomes of a person’s property or estate after they die. The person who makes the will is called the testator.
Functions of a Will
A will expresses the desires and wishes of its maker with the intention that those wishes be carried out after they die. Contrary to popular belief, the function of a will is not limited to the distribution of assets alone. Instead, it is used to carry out any instruction of the testator, including;
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Appointing a legal guardian for the testator’s minor children
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Making provision for the care of pets
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Leaving instructions for the testator’s funeral arrangements
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Appointing executors to administer and manage the testator’s estate and carry out all other instructions in the will.
Why You Need to Write a Will
Regardless of the unease you might feel about the topic, writing your will is necessary to eliminate any uncertainty, which might lead to family disputes about who gets what. Giving clear instructions in a will also makes it easier for your loved ones and preferred beneficiaries to access your assets. Writing a will means that you can rest easy knowing that you’ve done your best to look after your loved ones when you’re no longer around.
Preparing Your Will
You can write a will by yourself without a lawyer. However, this could be overwhelming, especially if you are new to it. Furthermore, there are some legal aspects of preparing a will, which you must be aware of. It is essential to comply with the legal requirements as that will determine whether or not your will is valid. This could get confusing, especially since the applicable laws are not uniform but vary across states.
Therefore, instead of doing it all on your own and perhaps ending up with a document that ends up being invalid, you might want to consult a trusted probate lawyer. Your lawyer can advise you on legal options and other technical areas such as tax liabilities. Professional help from a trusted probate lawyer will help you create a self-proving will and arrive at personalized decisions like minimizing inheritance tax.
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Essential Elements of a Valid Will
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The question now is, what elements do you need for a will to be valid in Georgia? Under Georgia State law, a valid will must have certain features as follows:
1. Writing
Georgia wills must be in writing to be valid. Acceptable forms include printed wills and handwritten wills. Oral wills and holographic wills are generally not accepted in Georgia law.
2. Age
The testator must be at least 14 years of age or older for their will to be considered valid in Georgia.
3. Testamentary Capacity
The testator must be of sound mind and capable of rational decision-making while making the will. They must also be free from coercion and any undue influence during the process.
4. Signature
The testator must sign the will. If the testator is perhaps physically unable to sign the will, they may direct another person to do so for them. The testator must also sign the will before two witnesses.
5. Attestation of Witnesses
The will must also be signed by at least two witnesses aged 14 or over in the testator’s presence. They must be competent witnesses and be available to witness the testator signing the document.
A witness may also be a beneficiary without losing their gift stated on the will only if at least two other disinterested witnesses sign the will.
When Is a Will Invalid?
A will that does not fulfill the requirements mentioned above is considered invalid. Examples of wills that fall within this category include oral wills or wills written under duress. Also, if there are conditions in a will that are illegal or against public policy, those conditions shall also be considered void.
Effects of an Invalid Will
Having an invalid will is akin to having no will at all. The implication is that the probate court will dictate what becomes of your personal property, including the fate of your pets or minor children. Those arrangements made by the court may be pretty displeasing to you. Therefore, it is not enough to merely write a will to ensure that your instructions are carried out even when you are no longer around. You must also ensure that it is valid and fulfills all the legal requirements for Georgia wills.
To prevent this, you could consider engaging the services of an estate planning attorney to assist you. The attorney-client relationship is confidential, so you can be sure that your lawyer shall not disclose your instructions until the appropriate time.
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Frequently Asked Questions
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What Happens to My Property Upon My Demise if I Do Not Have a Will?
When a person dies without a will, the laws of the state where they died decide what happens to his or her property. Georgia law, for one, activates a probate process that directs the probate court to determine what happens to their property.
The spouse and the deceased person’s children get the property in most cases. In the absence of spouses or children, the parents get the property.
The circle keeps widening until the court exhausts all loved ones and relatives. If there are no surviving relatives, the state takes over the deceased person’s assets.
Who Is an Executor of a Will?
An executor is a legal term used for a personal representative of a testator tasked with distributing the assets of a will as directed by the testator. While it is common practice for people to choose a close friend or family member, it is advisable to appoint an attorney or other neutral but responsible person.
How Do I Keep My Will Safe?
You should keep your original will with someone or somewhere safe, away from natural disasters and prying eyes. Your options include your lawyer, a safe deposit box, the Probate Court, your executor, or online.
Whatever option you choose, let trusted people know where to locate it and the information they need to access it.
What Does It Mean to be Under a Legal Disability?
A person is said to be under a legal disability when some legal barriers or elements prevent them from making a valid will. Examples of persons considered to be under legal disability include minor children under 14 years and persons suffering from insanity or who are mentally incapacitated. However, legal disability arising from insanity may be suspended if the person in question has moments of clarity, during which they can make a valid will.
Can I Make a Will if I Have Been Convicted of a Crime?
There is no legal barrier preventing a convict or even a person serving a prison sentence from making a valid will.
Do I Need to Notarize My Will to Make it Valid?
Your will doesn’t need to be notarized for it to be valid. However, if you wish to make a self-proving will, you and the witnesses to the will would need to make an affidavit before a notary public. The notary public would then issue a certificate in the statutory form, affixed with his official seal.
A self-proved will has an advantage in that it simplifies the process of executing the will after the testator’s death. It can be admitted to probate without the further testimony of the witnesses to the will. Your attorney can guide you in the process.
Can I Change My Will for Any Reason After a While?
Significant events or changes in circumstances may require you to change or update your existing will. As long as you remain of sound mind and are not under duress or coercion, you may make a new will or a codicil at any time. A codicil is a separate document showing a change in your will.
