What Elements Do You Need For A Will To Be Valid In Georgia?

 

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What is a Will?

What elements do you need for a will to be valid in Georgia? Perigon Legal Services can explain all these elements to you in detail. Call us today for more information.

Leaving behind a clear will after your death is vital for your family. However, a will must meet several requirements to be found valid in probate court. According to Georgia law, a valid will must be in writing, and the testator must be capable of making rational decisions without influence or coercion.

Writing a will may sound like a simple task, but even minor mistakes, contradictions, or ambiguity can open it to challenges in court. Let our estate planning attorney at Perigon Legal Services help you prepare your will and eliminate uncertainties.

Author: Stan Faulkner, Founder, Perigon Legal Services, LLC

Mr. Faulkner is an experienced counselor and litigator with 15 years of experience, having held bar licenses in four states (Mo, Il, Ct and Ga). Stan Faulkner uses this experience and focuses his skills in the pursuit of assisting individuals in probate (trust and estate) matters, guardianships and conservatorships, estate planning, business disputes and contract disputes. Published on August 22, 2023.

A will, also called a last will and testament, is a legal document in which a person states their wishes on how their property should be managed and distributed after they pass on. Creating a valid will makes accessing your assets easier and quicker for beneficiaries and eliminates family conflicts.

The person who makes the will is called the testator.

Wills generally provide instructions for settling an estate upon death. Other elements that testators usually include in the will are:

  • The designation of a legal guardian for their minor children

  • Making a provision for the care of their pets

  • Appointing executors to manage their estate and stating their duties

  • Leaving instructions for their funeral arrangements

What Determines the Validity of a Will in Georgia?

Under Georgia Law, a will must meet the following requirements to be valid:

Writing

Under O.C.G.A. § 53-4-20, wills must be in writing to be valid. Printed and handwritten wills are acceptable, whereas oral and holographic wills are not.

Age

According to O.C.G.A. § 53-4-10(a), a testator must be at least 14 years or older.

Testamentary Capacity

Under O.C.G.A. § 53-4-11 and § 53-4-12, the testator needs to have testamentary capacity, a sound mind, and the ability to make rational decisions to write a valid will. The testator ought to have voluntarily decided to create a will, and the writing process must be free from coercion and undue influence.

Signature Requirements

Under Georgia Law § 53-4-20, the testator must sign the will in front of at least two witnesses, and the signature can be a mark or name intended to authenticate the document. If the testator cannot sign, they can direct another person to sign.

Attestation of Witnesses

Georgia Law § 53-4-20(b) stipulates that the signing of a will must be done in the presence of at least two competent witnesses aged 14 or above. The witnesses must also sign the will in the testator’s presence.

A beneficiary of the will should not be a witness unless two disinterested witnesses are present. Otherwise, any gift to the witnessing beneficiary will be considered void.

Common Pitfalls in Creating Wills and How to Avoid Them

Creating a will is a critical step in ensuring your wishes are honored after your death. However, several common pitfalls can invalidate a will or cause disputes among beneficiaries. Here’s how to avoid them:

  • Vague Language: Often, wills are invalidated due to ambiguous terms that can be interpreted in multiple ways. To prevent this, use clear and specific language when describing your assets and to whom they should go.
  • Improper Witnessing: In Georgia, a will must be signed in the presence of two competent witnesses. Failing to meet this requirement can lead to a will being contested or deemed invalid. Ensure that the witnessing process complies with state laws and that the witnesses are not beneficiaries.
  • Outdated Information: Life changes such as marriage, divorce, and the birth of children can render a will outdated. Regularly update your will to reflect your current circumstances and intentions. This avoids the risk of parts of your will being disregarded or the entire will being challenged.
  • DIY Will Templates: While do-it-yourself will templates are accessible and inexpensive, they often lead to errors that can invalidate the will. Consult with a legal professional who understands Georgia’s specific legal requirements to ensure your will is valid and comprehensive.

By being aware of these pitfalls and carefully planning your will with clear language, proper witnessing, and up-to-date information, you can ensure that your final wishes are effectively carried out without disputes.

Steps to Create a Valid Will in Georgia

Creating a will alone is not advisable, considering the many invalidity grounds that can be used to void it. You may want to consider working with a trusted last will and testament lawyer to guarantee the proper execution of your will. After you consult a lawyer, you can follow this process to write a valid Georgia will:

Get Prepared

  • Decide on your will’s executor.

  • Decide on a legal guardian for your children.

Gather what you’ll need

  • List all your assets, including personal property and real estate.

  • List your beneficiaries.

  • Find two trusted witnesses to sign your will.

Write the will

  • Start your will with the title “Last Will and Testament”.

  • Include your personal information, such as your full name and address

  • Name the executor and list any legal guardians

  • Name your beneficiaries and what they should inherit.

  • State persons excluded from your will.

  • Add any special instructions to your executor.

  • Include instructions for your funeral if you wish.

  • End with the testator’s signature in the presence of at least two witnesses

  • Have the witnesses sign the legal document.

Make sure to write in clear, simple language that cannot be misconstrued.

What Happens If the Will Is Found Invalid?

Georgia laws of intestate succession are applied if a probate court determines the will to be invalid. The testator’s property will be distributed per Georgia’s inheritance laws.

If the decedent left a spouse but no children, the spouse inherits everything, and vice versa. If the decedent left a spouse and children, they share the estate equally, provided that the spouse receives at least one-third of the estate.

If the decedent leaves no spouse or children, the assets will go to the decedent’s family in the order mandated by the inheritance law.

 

Can I Revoke or Change My Will?

 

Testators with a will that no longer reflects their intentions or desires can change or revoke it. You can change the will by writing a new one or amending a current one with a codicil. When creating a new will, the old one needs to be definitely revoked. You can revoke a will by

  • Stating that you revoke the existing will in your new one
  • Physically destroying the old will and all its copies in a way that makes it invalid in court

Does the Will Need to be Notarized?

Georgia law doesn’t require the will to be notarized. All you need is the testimony of two competent witnesses for a will to be validated in court. However, if a testator chooses to self-prove the will, notarization is required according to O.C.G.A. § 53-4-24.

Self-proving a will speeds up the probate process, as no attesting witnesses will need to testify in court. Testators and their witnesses can self-prove a will by signing a self-proving certificate in the presence of a notary. The notary also signs to certify the legitimacy of the individuals who signed the will.

Do Wills Have to be Filed With a Probate Court in Georgia?

 

Georgia State requires wills to be filed with the probate court, whether or not you want to go through the process. The will must be filed shortly after the testator’s death.

 

Perigon Legal Services Can Help You

 

The purpose of a will is to ensure your wishes are fulfilled, and your family’s rights are protected. You may be risking the validity of your will and its ability to protect your loved ones if you don’t follow the legal instructions. We can help you!

Estate planning attorneys at Perigon Legal Services can help you draft a will or assess the validity of your existing one.

Contact our office to schedule a free initial consultation with a probate lawyer today.

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