Coleman Legal Group, LLC
Our Georgia attorneys practice law in the areas of:
We serve clients in Alpharetta, Atlanta, Roswell, Johns Creek, Milton, Cumming, Marietta, Dunwoody, Sandy Springs, Duluth, Lawrenceville, Kennesaw, Woodstock and the surrounding Metro Atlanta area. We have offices in Fulton, Forsyth, Gwinnett, DeKalb and Cobb county allowing us to conveniently meet with clients thorough-out the metro-Atlanta area.
In detail, our practice areas include:
- Divorce and Family Law: Georgia Contested Divorce, Georgia Uncontested Divorce, Separate Maintenance, Legal Separations, Child Custody, Child Support Modification, Child Custody Modification, Paternity, Legitimation, Child Support, Alimony, Spousal Support, Child Visitation, Contempt, Temporary Hearings, Name Changes, Annulments, Adoptions, Prenuptial Agreements, Antenuptial Agreements and Agreements in Anticipation of Divorce.
- Bankruptcy: Individual Bankruptcy and Business Bankruptcy: Chapter 7 Bankruptcy, Chapter 11 Bankruptcy and Chapter 13 Bankruptcy Cases; Debt Relief, Foreclosures, Repossessions, Mortgage Loan Modifications, Creditor Workouts, Credit Cards, Secured and Unsecured Loans, Collections, Lawsuits, Litigation and Settlements.
- Estate Planning: Estates, Wills, Trusts and Probate: Complex and Simple Wills, Estates, Trusts, Power of Attorneys, Georgia Advance Directive for Healthcare (which replaces Living Wills and the Durable Power of Attorney).
- Immigration: Fiancé and Marriage Immigration, Family Based Immigration, Deferment Actions, Refugee and Asylum Actions and Employment Immigration.
- Business Law: New Business Start-ups, Business Contracts and Established and Existing Business Needs.
Georgia Areas We Serve
Our Georgia lawyers and attorneys handle cases in the following cities and communities: Atlanta, Alpharetta, Roswell, Duluth, Johns Creek, Milton, Cumming, Marietta, Woodstock, Kennesaw, Gainesville, Midtown Atlanta, Norcross, Lawrenceville, Kennesaw, Duluth, Buckhead, Dunwoody, Vinings, Smyrna, Buford, Inman Park, Old Fourth Ward, Decatur, Grant Park, East Atlanta and the Virginia Highlands. Main Office, Alpharetta, Georgia: 5755 North Point Parkway, Suite 52, Alpharetta, GA 30022
Our Georgia lawyers and attorneys frequently handle cases for clients residing in the following counties: Fulton, Gwinnett, Forsyth, Cobb, DeKalb, Henry, Cherokee, Douglas, Carroll, Coweta, Paulding, Bartow, Hall, Barrow, Walton, Newton, Rockdale, Henry, Spalding, Fayette and Clayton.
Coleman Legal Group, LLC’s Georgia lawyers practice in the areas of Divorce, Family Law, Estates, Wills, Trusts, Probate, Bankruptcy, Business Law and Immigration. We have offices conveniently located at:
Our Georgia attorneys frequently handle cases for clients residing in the following counties: Fulton, Gwinnett, Forsyth, Cobb, DeKalb, Henry, Cherokee, Douglas, Carroll, Coweta, Paulding, Bartow, Hall, Barrow, Walton, Newton, Rockdale, Henry, Spalding, Fayette and Clayton.
Coleman Legal Group, LLC’s Georgia lawyers practice in the areas of Divorce, Family Law, Estates, Wills, Trusts, Probate, Bankruptcy, Business Law and Immigration. We have offices conveniently located at:
North Point Park
5755 North Point Parkway
Alpharetta, GA 30022
Phone: 770-408-0477 | Map
1200 Abernathy Road
Northpark Town Center
Atlanta, GA 30328
Phone: 770-408-0477 | Map
11555 Medlock Bridge Rd
Johns Creek, GA 30097
Phone: 770-609-1247 | Map
125 TownPark Drive
Kennesaw, GA 30144
Phone: 770-609-1247 | Map
Copyright © 2015 | Coleman Legal Group, LLC | All Rights Reserved. Coleman Legal Group, LLC • 5755 North Point Parkway, Suite 52 • Alpharetta, GA 30022 • 770-609-1247 DISCLAIMER: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
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Filing for bankruptcy is becoming more common these days. One of the main reasons is because the moment bankruptcy is filed any requests from creditors will be halted while the process is ongoing. They cannot try to sue you or take any of your property to settle any debts you might have with them. The creditors will have to go to the court in which the petitioner filed for bankruptcy where a judge will determine how the debts will be settled. During the bankruptcy process the petitioner will be asked to list all of their debts and all of their assets. There is the possibility that that some property will be liquidated to satisfy your debts. Should the filer attempt to conceal any assets or improperly influence the proceeding in any manner, they will have committed bankruptcy fraud or a bankruptcy criminal crime, which is a federal offense. Consequences of Bankruptcy Fraud It is possible to punish bankruptcy fraud with either criminal or civil penalties. If the court appointed trustee that is in charge of the filer’s case believes that fraud has been committed, then they can request that a civil penalty be imposed on the filer, which usually does not involve jail time. However, if the fraud that has been committed is severe, then the trustee could pass the case onto federal prosecutors who can impose criminal punishment such as jail time. Criminal and Civil Penalties Civil penalties typically include the forfeit if the filers discharge rights. This means that your debts will not be discharged at the end of the filer’s case which in turn means that the creditors will be able to sue the debtor and take property to settle debts or attempt to collect their debts by various means. There can also be a loss of exemptions meaning that assets that would normally be exempt from collection from creditors will no longer be protected. If the filer is found guilty of bankruptcy fraud and is convicted, then there is the possibility of getting up to five years in prison. Five years is the maximum sentence the court can impose. However if there is more than one offense, it can be up to five years per offense. It is also possible to get probation for committing bankruptcy fraud, which usually involves keeping out of any trouble and maybe meeting with a probation officer a couple of times; a probation sentence can last up three years, although longer sentences are possible. It is also possible to be fined for committing fraud; the maximum that a court can impose is $250,000 per offense. Fines can be imposed by themselves or on top of other criminal penalties. Hiding Assets The most common form of bankruptcy fraud is when the person who filed for bankruptcy tries to hide assets or tries to mislead the court as to what property the filer actually has. When the filer initially files for bankruptcy the court will ask for an inventory of all your assets called a bankruptcy estate. This is done so the trustee can determine how much you are able to pay the creditors. The common purpose for some people deciding to hide their assets is so that they don’t have to give certain property up or so they can make a...read more
Bankruptcy and taxes can be a difficult subject and it can have some serious consequences. One of the most commonly asked question is what will happen to my tax refund if I file for bankruptcy? There is no straight answer to that question, what happens to your tax return depends on what chapter you file your bankruptcy under. Filing under chapter 7 will probably protect the tax refunds while filing under chapter 13 could possibly mean less protection for your refund. Tax Refunds in Chapter 7 Bankruptcy When filing for bankruptcy your tax refund, whether already received or expected for that year, will be considered an asset. As with other exempt assets, if your tax refund is considered exempt the bankruptcy trustee will not be able to take it. Since the allowable exemption amounts for various assets vary from state to state, the amount of your tax refund that you can exempt depends on your state. If your state does not have a specific exemption for tax refunds, you may be able to use the wildcard exemption, which can be used to protect any asset. If you are still concerned about your refund during the bankruptcy, the timing of when you file is also important. Filing for bankruptcy during tax season can be a bit tricky, if you do file during tax season look into what exemptions your state offers. To get most use out of your refund consider using it to pay your legal fees for filing bankruptcy. If you file for bankruptcy at another time of the year, it could be a little more problematic if you are expecting a big refund. Another way to protect a tax refund is to defer more of your salary into an employer IRA or 401k. Tax Refunds in Chapter 13 Bankruptcy In a chapter 13 bankruptcy, your tax refunds will be analyzed by the trustee during the length of the plan, which can last anywhere from 3 to 5 years. If your plan pays less than 100% of your debt back to creditors, the trustee has the discretion to keep your tax refund during the life of the plan. Since chapter 13 requires that all disposable income be paid into the plan, most trustees classify tax refunds as disposable income. But keep in mind that even though your refund is being paid into your repayment plan, your plan payment will not actually be reduced. Since determining what to do with your tax refund is largely discretionary, your trustee may allow you to keep the tax refund in special circumstances, for example the refund is needed to pay your living expenses because you find yourself in a situation. However, keep in mind that the trustee will most likely require you to contribute your tax refund as part of your plan payment. There is almost no way to keep your refund is the trustee has decided that it will go towards your repayment plan. Share this:EmailPrintGoogleFacebookLinkedInTwitterMoreRedditPinterestPocketTumblrUpdated:...read more
If a person finds themselves in a state of having more debt than they can manage, it is possible they will file for bankruptcy. The moment bankruptcy is filed any requests from creditors will be halted while the process is ongoing. They cannot try to sue you or take any of your property to settle any debts you might have with them. The creditors will have to go to the court in which the petitioner filed for bankruptcy where a judge will determine how the debts will be settled. During the bankruptcy process the petitioner will be asked to list all of their debts and all of their assets. It is possible, depending on what property the filer owns, that some property will be liquidated to satisfy any outstanding debts. Should the filer attempt to conceal any assets or influence the proceeding in any manner, they will have committed at bankruptcy criminal crime, which is a federal offense. It is also possible that concealing assets can be a civil offense, the difference being the intention of the filer. If the filer commits the act with full knowledge and with the intent to mislead and commit fraud, then it is a criminal offense, in the case of civil fraud there is less misleading. Hiding Assets From the Court / Bankruptcy Trustee The most common form of bankruptcy fraud is when the person who filed for bankruptcy tries to conceal assets or tries to mislead the court as to what property the filer actually has. When the filer initially files for bankruptcy the court will create an inventory of all your assets called a bankruptcy estate. This is done so the trustee can determine how much you are able to pay the creditors. The common purpose for some people deciding to hide their assets is so that they don’t have to give certain property up or so they can make a smaller payment. Making Bribes in the Context of a Bankruptcy Attempting to bribe a creditor, the trustee, or anyone involved in the bankruptcy case can be considered bankruptcy fraud. A bribe may occur when the filer attempts to convince a creditor to not file a claim against them when bankruptcy is filed by offering them some kind of monetary payment. Being Intentionally Misleading to the Court / Bankruptcy Trustee Committing bankruptcy fraud is not an accident. Should the filer forget to list a gift that was received but never used, for example an old car from a family member. If that gift was kept in storage for a long time and the filer simply forgot to list it then it is not fraud. However, if the filer intentionally put the car into storage and knowingly forgot to list it, that is fraud. Scamming Homeowners as a Part of the Bankruptcy Process Typically, if a person is facing foreclosure on their house, they will try to do everything they can to make sure their family and themselves continue to have a home. There are some companies that are aware of this and decide to try to make some money. They tell the homeowner that they can remove the foreclosure on their home if they pay a certain amount of money. The fraud that is committed here is that after the company...read more
If you find yourself in a situation where you have too much debt that it has become impossible to manage and you have tried everything you can think of, it may be time to consider the option of bankruptcy. Most people don’t even consider bankruptcy as an option due to the stigma that it carries, but it is tool that is there to provide relief and a fresh start for those who really need it. If you are considering filing bankruptcy, there are a several things you should do before you file. Debt Payments It is advised that you do not pay above the normal balance that you owe to any creditor six months before you file, you may be doing it in good faith but to the court it may look like favoritism to a specific creditor. You can also elect to not continue paying your unsecured debts, if you have any. Keep records of collection attempts It is advisable to keep some sort of log detailing any collection calls by creditors, this can include the name, date, and time the creditor tried to collect. It may seem a bit tedious but it could also be beneficial for you since you have federal rights that protect you from harassment from collectors. Refrain from extravagant expenses It is important that you do not make any big expenses or go all out simply because you are planning on filing for bankruptcy. Doing so can be harmful to your eligibility to and it can be seen as fraudulent. Making large purposes with the intent of not paying back and planning on filing bankruptcy is considered taking advantage of the system and you can be prosecuted for that. Instead of spending the money you have on luxuries, it is better to spend it on necessities such as food or housing. Get all your required documents together It is important to be prepared in advance, since time is important. During your bankruptcy process, the court will appoint a trustee to your case. The trustee will be the one that you will interact with and turn in any documents that they ask for; it is advisable to remain on good terms with the trustee since they are the ones who will state to the judge whether you should get a discharge or not. Some of the important documents to have include credit bills from the last six months, bank statements from the last six months, pay stubs or proof of income for the last six months, your driver’s license and social security card, tax returns for the last 2 years, a title report stating any liens that could be on your property , copies of your deed or mortgage, paperwork from any property transaction for the last 2 years, and a statement that shows any profit or loss if you own a business. Attend a credit counseling class Anyone that files for bankruptcy must take a class on credit within six months of the bankruptcy filing date. This is mandatory according to bankruptcy law; the good thing is that there are a couple of ways of taking the class; in person, over the phone, or online. Ask your attorney of if you have any questions about signing up for the class. A competent bankruptcy...read more
Custody and visitation orders in Georgia are separate from orders of contempt. Custody and visitation orders are always awarded on the best interest of the children involved. Even if parents decide on a parenting agreement the court will still issue an order to indicate a parenting plan to delineate parental responsibilities, primary residence, and specific parenting times for each parent. Once a custody and visitation order is established both parents must comply with the order or they can be held in contempt of the court order. Violating a custody or visitation order is serious and as a consequence, can result in a modification of custody or visitation, when necessary to address the, “willful disregard to the courts orders.” In some instances violators of a child custody or visitation order can even be subjected to arrest, incarceration, and monetary fines. If you are suspected of violating a custody or visitation order then it is important that you contact counsel immediately as a case against you can result in serious consequences for both you and your children. Most of the time violations of custody and visitation orders stem from non-payment of child support and or for hindrance of a parent child relationship. The following are a list of behaviors which are typical of hostile aggressive parents and parents that are attempting to alienate the child from the other parent. You should seek an attorney if you believe that the other parent is “willfully engaging in any of the following activities.” Blocking Visitation If a parent is intentionally making a child unavailable for court ordered visitation it is considered visitation interference. Parents may attempt to block visitation as a means of controlling the other parent or preventing the child from spending time with the other parent due to a deep seeded hatred of the other parent—revenge. Blocking Visitation takes many forms and may manifest itself by the parent specifically scheduling activities to interfere with the visitation time and refusing to allow the other parent to obtain visitation due to the activity. It may also come in a direct form where one parent will directly and “willfully” state that they will not allow for the child to attend visitation—sometimes with an excuse and sometimes without an excuse. It is important to document every time that you are denied visitation and to present such documentation during a contempt proceeding. Without evidence that the other parent denied visitation you may not be able to hold the other party in contempt. If you are able to speak to the other parent when you are denied visitation you may also record the conversation and bring your court order with you. If you are still denied you may ask for the police to enforce the visitation order. Blocking Communication Blocking communication is another serious offense that may be addressed in a contempt hearing. Blocking communication is when a parent intercepts the other parent’s attempts to make contact with their child through text messages, phone calls, letters, cards, or emails. Blocking communications may or may not specifically be addressed in a custody or visitation order; however, such behaviors are considered threatening to the parent child relationship. In some instances the hostile aggressive parent will remove personal phones provided to the children to contact the other parent or even block...read more
If you have sought legal help or are thinking of going to get legal advice, one of the questions that seems to be popular is whether expenses made for the legal advice are tax deductible. Perhaps you are considering divorcing your spouse or maybe you need help with a contract on a house you are interested in renting. There may be multiple reasons you may require the services of an attorney, but that fact stands that regardless of the reason, you are going you are going to have to pay for those services. Normally, the expenses incurred for legal advice or services are not tax deductible, but there are a few exceptions. The General Guideline The guideline to follow is straight enough; you can deduct your attorney’s fees you pay trying to collect or produce income that is taxable, or in connection with the collection or determination of a refund of any tax. Simply put, if the legal fees are connected in some form to taxable income or taxes, you are allowed to make a deduction. For example, you can make a deduction if you need the help of an attorney to procure money you have to pay taxes on or if an attorney helped you with a type of tax matter, like having legal representation when you are being audited by the IRS. Deductions There are different types of situations that could qualify for a tax deduction, like fees you may pay for tax advice you may seek during a divorce case, like how the divorcing couple will split deductions for child care, home mortgage interest, or whether alimony is tax deductible by the paying spouse or taxable income to the spouse receiving the alimony. If you are trying to get your divorced spouse to pay alimony that is past due. If you are receiving a share of a class action settlement in a lawsuit that was filed against your former or current employer. For instance, say your former or current employer settles the class action lawsuit claiming that it didn’t pay overtime wages. As a part of the settlement you receive a check for $2000, but $2500 is reported to the IRS as taxable income because your share of the attorney’s amounted to $500. Since the income is considered work related, you are allowed to make a tax deduction for the $500 in attorney fees. Typically, you are not allowed to deduct legal fees paid for advice personal matters or for things that do not produce any form of taxable income such as fees for settling a will or any kind of probate matter between family members, any kind of help in the closing of a purchase for a home, or the filing of a personal lawsuit, this is because any monetary award obtained from the lawsuit is not a part of your gross income making it non-taxable. The Process and the Amount Usually attorney’s fees can be deducted as itemized miscellaneous deductions on the form schedule A of the 1040 tax return. Miscellaneous deductions are often limited by what is known as the the two percent rule, which is that you can only deduct the amount of your miscellaneous deductions that’s more than two percent of your adjusted gross income, which is an amount you will list of your 1040...read more
What is Paternity in Georgia? Paternity is the act of a father legally claiming his offspring as his own, under the law, for the purposes of support and inheritance. Paternity can be established in relationships between both married and unmarried partners. Paternity in the Context of a Marriage – In the state of Georgia if a couple is legally married then the paternity of the child is legally established and determined to be that of the husbands. Paternity when Single / Unmarried – In unmarried situations a father may be required to take legal actions to ensure financial support and visitation / custody rights. The process through which a father seeks to establish paternity is called legitimization. Paternity may only be established through a voluntary acknowledgement of paternity filed by both parents at the time of the child’s birth or must be done through the courts and legal action. Until a father has established paternity rights then the birth mother solely maintains all legal and custodial rights over the child. Once a court establishes paternity through the legitimation process then the judge may then establish the fathers’ rights to visitation and custody. A father will not have any right to his child until the paternity is established. How to Establish Paternity: There are two ways to establish paternity in the state of Georgia. Parents can both agree to the terms of establishing paternity and sign a voluntary Acknowledgement of Paternity form. The form is available at the hospital following the child’s birth and can be filed out and filed at a later date. The form must be signed by both parents, witnessed, and signed in front of a notary public. If the form is signed outside of a hospital can be filed out in the State Office of Vital Records or in the Vital Records Office in the county in which the child was born. In the event that the voluntary Acknowledgement of Paternity Form is not signed at the hospital only the mothers name will appear on the child’s birth certificate. Through the state the Acknowledgement of Paternity form is filed with the Putative Fathers Registry of Georgia located within the Department of Public Health. This filing of information further acknowledges the fathers’ rights as a claimed or alleged father and is designed to inform the father of any legal changes that may occur in terms of custody. For example the registry may ensure that the biological father is notified prior to the legal adoption of his children to a third party. Legitimation Through an Acknowledgment of Paternity Form: It is possible for both parents to establish a legitimation through an Acknowledgment of Paternity Form in addition to simply establishing paternity. If the father wants to establish custody or visitation rights to the child then he must sign the “legitimation section” on the paternity acknowledgement form. Signing the legitimation section does not grant the father equal rights over the child or any rights at this time, but can give him the ability to request rights concerning custody and visitation in the future. Additional rights may also be awarded to the father such as the child’s ability to inherit the father’s property and for the father to legally receive educational and medical information’s and vice versa. If the legitimation section of...read more
Tax Implications of a Personal Bankruptcy Almost everything you do has a tax consequence and filing for bankruptcy is not an exception. Every bankruptcy kind has its own impact on taxes in ways that may not be realized. After all, if it involves taxes, there are rules. One major advantage of bankruptcy is that your discharged debt does not have any real impact on your taxes as a result of it does not count as nonexempt financial gain. In other words, you will not be taxed on your discharged debts. However, if you surrender a home or have not made any mortgage payments – you would not be necessarily eligible for the mortgage tax deduction. Also, if you are in the middle of an IRS audit, filing bankruptcy will not stop the audit. It will stop collection actions until the bankruptcy process is finished and if the IRS does not issue a Relief of Stay motion. However, the 10-year statute of limitations is extended for the complete time of the bankruptcy continuing and thirty days for body time. Any time collection action comes to a halt, like throughout the process of a suggestion in compromise or throughout the time you’re deemed presently not collectible, the statute is extended, it is recommended to bear that in mind if considering bankruptcy as an option. While bankruptcy can discharge certain kinds of income tax debts, not all tax debt may be discharged in bankruptcy. Elements that are considered to be priority debt cannot be discharged. This includes support payment, student loans, drunken driving charges, fines stemming from the commission of a criminal offense and priority tax debts: sure penalties (trust fund penalty), fraud assessments and therefore the monetary fund portion of payroll tax debts. Priority debt should be entirely repaid in a Chapter 13 bankruptcy reorganization. For taxes to be dischargeable in bankruptcy, they have to be income taxes that are a minimum of three (3) years previous as counted from the maturity date of the official document as well as extensions. The personal tax return needs to have been filed by the taxpayer; it cannot be any form of a substitute filed return ready by the IRS. Also, the tax should be assessed at a minimum of 240 days. Therefore if you recently filed your 2006 tax return, you are not free from the liability in a bankruptcy case discharge until 240 days have passed by. And if the IRS has filed a lien against your real or material possession, the tax lien will still be enforceable as to that property. If you excluded the number of discharged debt from financial gain, you need to use that quantity to scale back sure deductions and credits, known as tax attributes. Generally, these attributes should be reduced in the following order, net in operation losses, general business credit carryovers, minimum tax credits, capital losses, basis of your property, passive activity loss and credit carryovers, and foreign tax credit. It is important to know that if you haven’t filed your tax returns, it doesn’t matter however previous the liability, those taxes can’t be discharged in bankruptcy. One way bankruptcy will assist you together with your liabilities is within the space of cancellation of debt financial gain. Normally, after you settle a debt for fewer than its full...read more
In certain situations it may be necessary to file a case concerning a modification and contempt in a new county other than the original county that may have jurisdiction. This type of situation typically occurs once a parent relocates to a new residential area and the relocation makes it necessary to pursue legal action in the county in which the defending party resides. In the past it has been necessary under Georgia law to file for child custody, child support, or visitation modifications in the county of the defendant’s current residence and for contempt actions to be brought in the county of the original child custody / divorce decree. This added to complications as the result of the two separate filing requirements would result in two separate cases pending in different counties at the same time. However, since the Georgia Supreme Court Case of Ford v. Hanna (March 4th 2013) this rule of law has changed to allow for filings of both cases to be unified in the same petition. The ruling of Ford v. Hanna has revolutionized the law concerning these types of petitions by allowing a petitioner to combine the modification and contempt actions in a singular petition which is then filed in the count of the defendants residence – the idea being is that the court in the county of the defendant will have personal jurisdiction over the defendant. For example if a parent needs to file for a modification of visitation and contempt for nonpayment of child support then they may file both actions together in the defendant’s residential county superior court system. On the other hand major modifications to custody may be more appropriately addressed in the original court of jurisdiction as they will have more familiarity with the case and parties. If a counter petition is filed for a modification of custody then it may be necessary to consider a change in venue back to the original court of jurisdiction to handle the modification issues. In the case of Colbert v. Colbert (2013) in the Supreme Court of Georgia it was found in an appeal case that the mother lost her appeal to the court decision which reversed custody to the non-custodial parent after the non-custodial parent counter claimed for modification of custody in his county – the county in which the mother initially filed. The Georgia Supreme Court found in this case that although the court may have not had enough background information on the case to establish a ruling with former precedence that the case could not be overturned, due to the fact that the mother failed to object to the jurisdiction of the court to hear the responsive modification of custody. The court therefore believed that the defendants responsive petition could have been moved at the request of the mother at any time before or during the court proceeding as the proper jurisdiction can be and typically is located in the county in which the child resides. If it is believed that the jurisdiction of your case may come into question or is complicated it is necessary to consult with a family law attorney. A family law attorney will be able to establish the court that should have proper jurisdiction over your case and how to handle or relocate any...read more
Who Can Make a Will in Georgia (a) Every individual 14 years of age or older may make a will, unless laboring under some legal disability arising either from a want of capacity or a want of perfect liberty of action. (b) An individual who has been convicted of a crime shall not be deprived of the power to make a will. 2006 Georgia Code 53-4-10 What is Testamentary Capacity (a) Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property. (b) An incapacity to contract may coexist with the capacity to make a will. (c) An insane individual generally may not make a will except during a lucid interval. A monomaniac may make a will if the will is in no way connected with the monomania. In all such cases, it must appear that the will expresses the wishes of the testator unbiased by the insanity or monomania with which the testator is affected. (d) Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will. O.C.G.A. 53-4-11 Freedom of Volition in Making a Will A will must be freely and voluntarily executed. 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. O.C.G.A. 53-4-12 Execution and Attestation of a Will (a) A will shall be in writing and shall be signed by the testator or by some other individual in the testator´s presence and at the testator´s express direction. A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator´s will. (b) A will shall be attested and subscribed in the presence of the testator by two or more competent witnesses. A witness to a will may attest by mark. Another individual may not subscribe the name of a witness, even in that witness´s presence and at that witness´s direction. O.C.G.A. 53-4-20 The Testator’s Knowledge of the Contents of a Will is Necessary Knowledge of the contents of a will by the testator is necessary to the validity of a will. If the testator can read, the testator´s signature or acknowledgment of that signature is presumed to show such knowledge. O.C.G.A. 53-4-21 Who Can Witness a Will (a) Any individual who is competent to be a witness and age 14 or over may witness a will. (b) If a witness is competent at the time of attesting the will, the subsequent incompetence of the witness shall not prevent the probate of the will. O.C.G.A. 53-4-22 Rules Regarding Testamentary Gifts to a Witness or a Witness’s Spouse (a) If a subscribing witness is also a beneficiary under the will, the witness shall be competent; but the testamentary gift to the witness shall be void unless there are at least two other subscribing witnesses to the will who are not beneficiaries under the will. (b) An individual may be a witness to a will by which a testamentary gift is given to that individual´s spouse, the fact going only to the credibility of the...read more