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Wills
We also create: Living Wills, Health Care Power of Attorneys, and Financial Powers of Attorneys. Please call for a free consultation. PDF File: Will Preparation Form
Who needs a will?Basically, all adults need a will. Fortunately, in Georgia, usually it is not necessary to try to avoid probate. This is because in Georgia, the court costs are relatively low. Having a valid will can help to settle your estate at a lower cost. Why do I need a will?
Many important
choices can only be made if you have a will. For example: What if I die without a will?If you die without a will, then state law will determine whom receives your property. In addition, the court will have to make other decision in your place if you do not have a will. For example, the court will have to appoint a guardian for your minor children. Also, the court will appoint an administrator to settle your estate and distribute your property. Your property will be inherited and divided as provided for by state law. If my property is titled as joint tenants, do I still need a will?Yes. While property titled as Joint Tenants With Right of Survivorship will pass to the surviving tenant upon your death, this does not take into account the possible death of both tenants in a common accident (such as an automobile wreck). Because most people do not have 100% of their property titled this way, the court will have to appoint an administrator to distribute the other property in accordance with state law.
What are the formal requirements for a will? A will is the legal declaration of a person’s intention for the disposition of his or her property after his or her death. The law of each state set forth the formal requirements for a legal will. In Georgia:
1. You, the maker of the will (called the testator) must be at least 14 years old.
2. You must be of sufficient mind and memory to realize you are making a will disposing of your property.
3. The will must be in writing.
4. A valid will must be signed by the testator and witnessed by at least two witnesses in the special manner provided by law. These witnesses should not be personals who are designated to take property under your will.
5. It is necessary to follow exactly the technical formalities for the execution of a will.
May a person dispose of his or her property in any way he or she wishes by a will? A testator, by his or her will, may make any disposition of his or her property not inconsistent with the laws or contrary to the policy of the state of Georgia. A testator may bequeath his or her entire estate to strangers, to the exclusion of his or her spouse and children. In such cases, however, the spouse, on behalf of herself or himself and any minor children, may apply to the court for part of the deceased’s estate sufficient to support him or her and the minor children for 12 months.
While any real or personal property may be transferred by a will, there are some particular interests in property which may not be transferred because of the owner terminates automatically upon his or her death. A life estate and property owned in joint tenancy with right of survivorship are two examples.
Does a will increase probate expenses? No. Unlike some states, in Georgia there is no need to avoid probate. Court costs are low and procedures are simple. In fact, a will may reduce expenses.
How much does a will cost? Lawyers usually set their fees based on hourly rates. The amount of time needed to prepare a will depends on the complexity of each case.
How long is a will valid? One’s will does not become valid until death and may be changed or amended by signing a new will or “codicil,” which is simply an amendment executed with the same formalities as a will.
A will’s terms cannot be changed by writing something in or crossing something out after it has been executed.
When should a will be changed? Under Georgia law, unless the will specifically states otherwise, a child born or adopted after the will has been made revokes your will and marriage revokes your will. If you divorce after you execute your will, your former spouse will not be allowed to take under your will. Changes in the circumstances of a testator require a careful reconsideration of all provisions of the will and may make a change advisable.
Is a life insurance program a substitute for a will? No. Life insurance is only one kind of property that a person may own. A will is still needed to dispose of the rest of one’s property to the intended beneficiaries. Moreover, if the life insurance policy is payable to the estate of the insured, the disposition of the proceeds may be directed by will. (If a policy is payable to an individual, however, the will of the insured has no effect on the proceeds.) Also, life insurance proceeds may be subject to estate taxes.
Is placing all property in joint ownership a substitute for a will? No. While joint ownership in some cases is a useful legal device, it is not a substitute for a will. Besides causing adverse tax consequences, a joint tenancy does not provide for the distribution of the joint property in the event of a common disaster.
Who should prepare a will? Drafting a will involves making decisions requiting professional judgment which can only be obtained by years of training, experience and study. Only the practicing lawyer can avoid the innumerable pitfalls and advise the course best suited for each situation. You should avoid using do-it-yourself wills as they may create problems.
What is a Living Will? The state of Georgia recognizes the right of a competent adult person to make a written directive known as a Living Will, instructing his physician to withhold or withdraw life-sustaining procedures in the event of a terminal condition. There are certain specific limitations on the contents, execution and witnessing of a Living Will and you should consult an attorney if you wish to have one prepared. You may also want to consult your attorney about signing a power of attorney for health care purposes.
1. A will signed and witnessed in another state will usually be valid in Georgia. However, if you have moved here from another state, it is wise to have your will reviewed by a Georgia lawyer in order to ensure that it is properly executed according to Georgia laws, and that your executor is qualified to serve in this state.
2. An improperly executed will may be void. Thus, be sure you sign your will in the presence of your attorney who knows exactly how the will should be signed.
3. The Tax Reform Act of 1981 and subsequent tax laws made sweeping changes in the federal estate and gift tax laws. If your present will has not been reviewed by your attorney since 1981, it should be reviewed as soon as possible to determine what, if any, action should be taken in light of the new laws.
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