What Makes a Will Valid in Georgia?
A last will and testament is a legal document that conveys property to named beneficiaries on the death of the person making the will. To be a legally valid will in the State of Georgia, the document must meet specific requirements established in state statutes.
Basic Requirements
Under Georgia Code § 53-4-10, anyone who is at least 14 years old can make a will, unless the person has a legal disability, due to lack of capacity or impairment of freedom of volition. No specific form is necessary, but the document must make clear the intention to convey an interest only on the testator’s death.
Oral wills are not valid in Georgia. A will must be in writing, either handwritten or typewritten. The document must be signed by the testator and witnessed in the presence of the testator by two people who are at least 14 years old. Georgia law does not require a will to be notarized, but having a notary attest to a valid will (in addition to the two required witnesses) can simplify the probate process.
Testamentary Capacity
A testator must have the capacity to make a will. Georgia Code § 53-4-11 provides that testamentary capacity exists “when the testator has a decided and rational desire as to the disposition of property.” This requirement is sometimes referred to as the requirement that the testator be of sound mind when executing a will.
The law recognizes that a person may not have the legal capacity to make a contract but still have the capacity to make a valid will. The statute specifically states that: “Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.” The law also provides that an insane person can make a will during a lucid interval.
To have legal capacity to make a will, the testator must be able to fully realize the consequences of their actions and understand the effect of the decisions they are making. Capacity is determined at the time the testator executes the will, by referring to all the circumstances surrounding creation and execution of the will.
Lack of testamentary capacity is a reason for contesting a will. The question of capacity may exist with elders who make or change a will, especially if the elder is showing signs of slowing mental agility as a natural part of the aging process. Avoiding potential challenges based on testamentary capacity is an important reason why elders should always get help from an experienced estate planning attorney when making or revising a will or estate plan.
Freedom of Volition
In addition to testamentary capacity, Georgia Code § 53-4-12 requires that the testator must freely and voluntarily execute a valid will. The law states: “A will is not valid if anything destroys the testator's freedom of volition, such as 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.”
Under Georgia law, circumstances that affect the testator’s free choice to implement their wishes or the voluntary nature of execution provide a basis for a court to invalidate a will. The validity of a will executed without freedom of volition can be contested after the testator’s death.
Your Attorney’s Role
When an estate planning attorney helps you translate your wishes into a valid will and other legal documents as part of your estate plan, your lawyer makes certain that your will meets all the requirements of Georgia law. For elders, that often means documenting the circumstances surrounding creation and execution of the documents, to ensure that your will is protected against challenges after your death.
Creating a valid will or estate plan without assistance from an attorney poses substantial risks to you and your loved ones. Do-it-yourself (DIY) wills and estate plans can leave your estate vulnerable to attack by disappointed heirs or beneficiaries. Your documents may not be legal under Georgia law or may not accomplish what you think they do. You also could end up with an incomplete estate plan that does not fully protect you and your family.
Your lawyer makes certain that you understand all the special terminology used in estate planning, as part of the whole process of developing your estate plan. In selecting the fiduciaries in your estate plan, your attorney helps you understand the role of each one, and the special skills and abilities that each fiduciary should have.
Dividing your estate among your beneficiaries is one of your most important tasks. Your lawyer makes sure that you understand how to select and identify beneficiaries, as well as how changes in circumstances can affect beneficiary choices in the future. Your attorney also helps you make the right choices for your estate plan, such as whether to include a trust in addition to a valid will.
Getting help from an experienced estate planning lawyer is the only safe and sure way to make a will and estate plan that accomplishes all your wishes and goals. If you don’t use a lawyer, and your will is invalidated, the result is equivalent to not having a will at all. Dying without a will means your estate could end up with people other than the loved ones you intended to benefit from it.
Talk With an Experienced Georgia Estate Planning Attorney
In our Cartersville estate planning practice at Asset Protection & Elder Law of Georgia, we focus on protecting our clients and their assets, whatever their unique circumstances may be. We help clients who wish to create a last will and testament, to ensure that the document is valid under Georgia law. We also provide advice about all other aspects of estate planning that relate to a client’s individual circumstances.
We provide services to clients throughout the communities northwest of Atlanta, including in Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County and Paulding County.
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