A  Last Will and Testament is a document which allows you to transfer property you hold in your name to the person(s) and/or organization(s) you want to have it.  A Will also typically names someone you select to be your Personal Representative (or "Executor") to carry out your instructions and also names a Guardian if you have minor children.  A Will only becomes effective upon your death and after it is admitted to probate. 

Basically, all adults need a will.  Many individuals think that they do not need a will because they think they do not have sufficient assets which would require a will.  However, a will serves other purposes than simply distributing assets.  In addition to the distribution of assets, a will allows you to specify how your debts should be paid, the individual(s) you would like to have custody of your minor children, and specify your wishes for your final resting place.  Having a valid will can also help to settle your estate at a lower cost.

If you die without a will, then state law will determine the individuals who will receive your property.  In addition, the court will have to make other decisions 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 simultaneous death of both tenants in a common accident (such as an automobile accident).  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.

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 sets forth the formal requirements for a legal will. In Georgia:

• You, the maker of the will (called the Testator) must be at least 14 years old.

• You must be of sufficient mind and memory to realize you are making a will disposing of your property.

• The will must be in writing.

• 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.

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 public 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 “Years Support,” which entitles him or her to part of the deceased’s estate sufficient to support him or her and the minor children.

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 the testator’s ownership terminates automatically upon his or her death. For example, you cannot transfer property in your will if the property’s owners are joint tenants with a right of survivorship, such as in the case of a joint bank account or a home owned by two individuals as joint tenants with right of survivorship. 

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.

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.

A Last Will and Testament which is executed in accordance with all the requirements set forth in the laws of the state in which it was executed is a valid will for an indefinite duration of time.  One’s will does not actually become effective, however, until death.  Depending on state law, certain events may revoke the entire will or portions of the will, such as divorce.  In Georgia, however, in most cases an event will not revoke the entire will, but will just revoke the portions that are directly affected by the event.  A will 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.

Under Georgia law, a will is not revoked entirely if a child is born or adopted or if the testator marries after the will has been executed.  However, the will is revoked to the extent necessary to provide for the child or spouse under intestacy laws.  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.

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.

Drafting a will involves making decisions that require professional judgment which can only be obtained from 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.  Fill-in-the-blank form Wills typically take longer to probate because judges frequently question the process used in their execution, requiring the witnesses who saw you sign the Will to appear in court. That creates expense, delay, and added legal bills. Another consideration is the possibility of a “Will Contest.”  If an individual brings a “Will Contest” because they were not named in the will or because they feel they are entitled to more than what was left to them, the Will will not be admitted to probate if the Will were not properly signed and witnessed. In other words, you may think you prepared a valid Will, but it would not be worth the paper it is written on, and that would not be known until after your death.

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.

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.

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.

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.