What is a will?

A will is a legal document that you create when planning your estate. Wills direct the distribution of your probate estate, which is basically the part of your property available for distribution at the time of your death. Since proper execution is necessary in order for a will to be valid, following expert legal advice is key.

How can a will distribute property?

Your will controls the distribution of your probate estate. Your probate estate essentially consists of all property you own at the time of your death. There are a few major exceptions to this principle, though. Property liable to distribution under the terms of a contract or by operation of law cannot be probate property. Probate property includes:

  • your tangible possessions like clothing, jewelry, household furniture and furnishings
  • cars registered in your name
  • real estate titled in your name (or in your name and the name of some other person as tenants in common)
  • bank accounts registered in your name with no pay-on-death designation
  • stocks and bonds held in an account in your name with no transfer-on-death designation

Non-probate property (property that is not subject to distribution under your will) includes:

  • life insurance with a death beneficiary designation, pension and retirement accounts (like IRAs and 401(k)s) with a death beneficiary designation
  • property owned by you and some other person as joint tenants with right of survivorship
  • bank and brokerage accounts with pay-on-death or transfer-on-death designations.

Remember: in most cases, even a valid will cannot control who receives your non-probate property.

Who can receive property under a will?

In your will, you may direct the distribution of your probate estate in any manner. You may leave your property to charitable organizations or even strangers to the complete exclusion of your spouse and children. However, you may not include provisions that are contrary to Georgia law or public policy. For example, Georgia law entitles your surviving spouse and minor children to certain safeguards. These may include property from your estate for their support and maintenance for a period of 12 months.

Who needs a will?

The first priority of estate planning is to create a properly drafted and executed will. No matter how many assets you have, no matter your marital status, no matter how many children you have, you should have a will.

Why do I need a will?

When you have a will, you may dispose of your estate as you choose. If you do not have a will, you are in a state of intestacy. Alternatively, if you die intestate, state law will distribute your estate to your legal heirs. Here are a few examples of this principle in action:

  • With a will, you can direct that all of your estate be distributed solely to your surviving spouse. Without a will, your estate will be shared by your surviving spouse and children.
  • With a will, you can direct that your property be available to your surviving spouse during his or her lifetime and pass to your children upon the surviving spouse’s death. Without a will, the property distributed to your surviving spouse will be distributed as your surviving spouse decides.
  • With a will, you can nominate the guardian of your minor children. Without a will, the choice of guardian will be determined by a court.

Additional benefits of a will

  • With a will, property can be distributed to trustees of your choice to manage the property on behalf of beneficiaries who might need protection from creditors and their own unwise decisions. Without a will, property might be distributed to these beneficiaries outright or to a conservator chosen by a court.
  • With a will, you choose the person, bank or trust company to serve as executor of your estate. The executor will distribute your estate in accordance with the law and the terms of your will. Without a will, a court chooses an administrator of your estate at the request of your heirs, who may or may not agree on the choice.
  • With a will, you can give your executor full powers to sell your property and manage it without requesting permission of a court. Without a will, your heirs must petition a court to grant the administrator these powers.
  • With a will, you can provide that your executor serve without posting a surety bond and filing an inventory or periodic reports to a court. Without a will, your heirs must petition a court to relieve the administrator of these duties.
  • With a will, you can structure an estate plan to reduce federal estate taxes. Without a will, your estate may owe more in taxes.

What are the requirements for a valid will?

The laws of each state establish the requirements for a valid will. These are the requirements for a valid will in Georgia:

  • you must be at least 14 years of age
  • you must have a decided and rational desire as to the disposition of your property
  • you must execute your will freely and voluntarily
  • your will must be in writing and signed by you
  • your will must be attested and signed in your presence by at least two competent witnesses

How long does my will remain valid?

The mere passage of time has no effect on the validity of a will. Of course, laws and circumstances may change, which may render a will ineffective or create unintended results. You should review your will at least once every two or three years. Additionally, you should always review your will if you have a major life change, such as a marriage, divorce, birth or adoption of a child, or a substantial increase or decrease in wealth.

What effect does my subsequent marriage, divorce or birth or adoption of a child have on my will?

If you marry, divorce or have or adopt a child after the execution of your will, the law may intervene to revoke or modify certain provisions of your will. You should therefore always review your will in the event of marriage, divorce, or the birth or adoption of a child.

Can my will be changed or revoked?

Your will does not take effect until you die and the probate court admits your will to probate. As long as you remain competent to execute a will, you may change your will any time before your death. You can change a will either by executing a written document called a codicil, which makes changes to an existing will, or by executing a new will (You must execute a codicil according to the same rules that apply to wills.) You do not need to give any notice to your beneficiaries if you change your will. Importantly, your beneficiaries do not need to approve any change to your will. You may revoke your will at any time before your death. The best way to revoke a will is to execute a new will.

Who should write my will?

Writing a will involves making decisions which require professional judgment obtainable only by years of study, training and experience. In addition, the laws governing wills and probate are always changing. You should not write your own will or use a form or computer software purchased from an office supply store or online retailer. A do-it-yourself will may leave your estate and your beneficiaries in worse shape than if you died without a will. A practicing attorney with experience in drafting wills can provide the best advice to you about the distribution of your estate and draft a will that is best for your individual situation and intentions.

Is my will from another state valid in Georgia?

A will executed in another state that meets the requirements of a valid will in Georgia is usually valid in Georgia. However, if you have moved to Georgia from another state, it is a good idea to have your will reviewed by a practicing wills and trusts attorney in Georgia to ensure that it is valid under Georgia law and that its provisions will have the same intended effect if you die a resident of Georgia.

What is probate?

Probate is the court-supervised process of administering a person’s probate estate. The process begins with validating the will (or making the determination that there is no valid will). Then, you must appoint the person whose job will be to gather and manage the assets of the estate, pay claims against and expenses of the estate and distributing the assets of the estate to the beneficiaries.

Should I try to avoid probate?

Georgia has a modern probate code and probate judges who have no interest in unnecessarily prolonging the probate process or closely supervising the administration of estates. Thus, probate in Georgia is generally not burdensome or expensive. The court costs often include only the initial filing and publication fees. These total costs add up to usually less than $500. However, court costs do not include compensation to the executor or fees charged by attorneys or accountants for services provided to the estate.

Despite what you may hear about the burdens of probate, techniques designed for avoiding probate do not suit the needs of most Georgia residents. This includes popular instruments like revocable living trusts. However, if you own real property in another state, it may be subject to probate in that state at your death, and you may want to avoid probate in that state by using a revocable living trust or some other technique.

What is a living will?

A living will is not a will. It is a document operating under state law that provides a person’s directions on the withholding of life-sustaining medical procedures. This becomes important only in the event of a terminal condition or a state of permanent unconsciousness. Georgia state law refers to this document as an advance directive for health care. For more information, you may want to read the State Bar of Georgia’s pamphlet on advance directives for health care.