Creating a last will and testament is crucial in planning the distribution of your estate—the real estate, personal property, and cash you own—after your death. Georgia wills give the testator (the person writing) the opportunity to ensure that a spouse, children, other loved ones, and even pets are taken care of after his death. You may also choose to leave property or make other gifts to charitable organizations through your Georgia will.
In contrast to a last will and testament, a living will dictates instructions to be followed should you become incapacitated and incapable of making decisions regarding your health and medical care. A living will, called an “advance directive for health care” under Georgia law, would take effect during a person’s life if necessary, while a last will and testament does not take effect until after the testator’s death.
Do you need a last will and testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) determine the distribution of an estate's assets. The outcome under these rules may not coincide with the decedent's (the deceased person) wishes, however, which means it is generally advisable to create a last will and testament.
One of the greatest benefits of having a last will and testament is that it allows the testator to choose the personal representative of the estate, called an executor. This person will be responsible for carrying out the wishes contained in the will; in the absence of a will, the courts will make the decision for you.
A testator can use a will for various purposes, but the most important is to express how assets such as real estate, vehicles, jewelry, business holdings, bank accounts, and cash should be divided upon the testator’s death. A Georgia last will and testament can also allow you to name someone as the legal guardian of your children.
Moreover, in addition to trusts that provide a benefit for people, Georgia law specifically allows for the creation of a trust for the care of animals alive during the settlor’s lifetime (“pet trust”). Such a trust terminates upon the death of the animal or upon the death of the last surviving animal if the trust was created to provide for the care of more than one animal. A Georgia will gives you the option of caring for your animals after your death in this manner.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. In Georgia, the executor of a will must first request the court to be formally appointed as the personal representative of the state; the executor is then granted “Letters Testamentary” and can proceed with the distribution of assets according to the will's provisions.
Intestacy: Dying without a will
Someone who dies without a will is called “intestate,” which invokes the laws of intestacy. In Georgia, if there are no children, a surviving spouse takes all property of the deceased. If there are children and a surviving spouse, they each take in equal shares. In any event, a spouse’s share in Georgia can never be less than 1/3 of the estate.
If there is no surviving spouse or children, the entire estate passes down the line to parents, siblings, uncles and aunts, grandparents, etc.
In order to avoid having control over the distribution of your assets and to avoid your estate falling under the laws of intestacy, it is crucial to have a valid Georgia will.
Exceptions to the ability to distribute property
Not all property you own can be distributed through a Georgia will. For example, property that is owned in joint tenancy with the right of survivorship cannot be devised by will.
Other types of property that do not pass through wills include, but are not limited to, the following:
- Property that has been transferred to a living trust
- Life insurance proceeds
- Retirement account funds
Note that a surviving spouse and minor children are entitled to a portion of your estate for their support and maintenance for a period of one year.
Form a last will in Georgia
The basic requirements for a Georgia last will and testament include the following:
- Age: The testator must be at least 14 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator (with his own name, by mark, or by another name intended to authenticate the document as his will) or by another person under his direction.
- Witnesses: Two competent witnesses must be present when the testator signs a Georgia last will and testament in order for it to be valid. A witness may be a beneficiary, but the gift to that beneficiary is void unless there are at least two disinterested witnesses as well.
- Writing: Georgia wills must be written.
- Beneficiaries: You may leave your assets to whomever you wish with your Georgia will, including charities.
Changing a Georgia last will and testament
A Georgia last will and testament may be changed at any time before the testator’s death through a new will or a codicil, which is an addition or amendment that must be executed with the same formalities as a will in order for it to be valid.
Revoking a Georgia last will and testament
A Georgia will may be revoked at any time by the testator before his death by another written will. Revocation may be expressed (another writing, destruction, or obliteration that revokes the will) or implied (a subsequent, inconsistent will).
Note that in Georgia, if you get married, get divorced, or have or adopt a child after the execution of your will, certain provisions of your will may be modified or revoked by law unless there was a provision contained therein contemplating such an event.
If you are ready to take the next step in creating a last will, LegalZoom can help you make a last will online today.
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