Your Last Will and Testament is an important part of planning for your family’s future.
Planning for the future is an important aspect of our lives, whether it is planning tomorrow night’s dinner or figuring out what will happen to your family when you pass away there has to be the security that it will go according to your wishes. One way to ensure that your plan for your property and even yourself is carried out is by creating a Last Will and Testament (a “will”). Most people have little to no knowledge of wills, which is why we have provided these frequently asked questions listed below along with answers, so that you can be more informed. This article is written primarily for people residing in Georgia. In any event, if you are planning to have a will done, it is best to consult with an experienced estate planning attorney that practices in Georgia, or the state you reside.
What exactly is a will?
A will is a legal expression or declaration of a person’s wishes as to the allocation of his or her property, to be performed and to take effect after their death. It is not a sheet of paper nor the number of sheets of paper if has, but the written words that truly matter. It must be executed with the formalities required by the law (usually the state’s law it is signed in). Only after the death of the person who made the will can their wishes be made happen, through a process called probate. An improperly witnessed, notarized, signed will cannot normally be probated, so it it important to understand the essentials for a will to be valid in Georgia (or the state you may live). In Georgia, wills are generally governed by Title 53 of the Official Code of Georgia.
How do I make a will?
In Georgia, any mentally competent person fourteen (14) years or older can make a will. The document must be signed and dated before two (2) witnesses who are familiar with its contents. The person who creates the will, the testator, must sign it freely and voluntarily. While not necessary for the will to be valid, the will should have another document that is attached and notarized called a Self Proving Affidavit, which makes probate of the will much easier. We advise our clients to always take the extra-step of making sure their will has a notarized Self Proving Affidavit attached to it.
Should I make a will?
Yes, is usually the responsible and safe answer. However, you might can do without a will if do not care about what happens to your property and your family after you die. If you have significant property, you are more likely to need a will. If you die without a will, then you are said to have died intestate. Dying “intestate” means you died without leaving anything to testify as to what your wishes were regarding the disposition of your property. If this happens then your property will be distributed according to the state’s probate laws. This process is usually more time consuming and expensive for your heirs, and the distribution of your property may be very different from what you would have preferred.
Do most people make a will?
The answer is no, not everyone who passes away leaves a will behind. It is estimated that more than half (50%) of Americans people do not have a will. As a matter of fact, many people that really need wills will put off making one until they are very ill, which could result in the will never being made at all. And of course, many people die in accidents with no will, and with no opportunity to make one.
What Will Happen if I died without leaving a will?
Passing away and living a will behind means that you’ve died intestate, which means that your property is subject to the state’s probate laws. In Georgia, your spouse inherits all of your intestate estate if you have no living children or grandchildren when you die. If you are survived by a spouse and children, they will equally share your estate. The spouse will receive one-third (1/3) of the estate with the rest being divided evenly between any children you may have left behind, this includes children from a different marriage.
What happens if I don’t leave behind a spouse or children?
If you don’t leave behind a spouse, children or grandchildren, the state’s intestate succession laws require that your surviving parents equally inherit the estate’s assets. If the deceased is not survived by parents, the next in line to inherit are siblings, followed by nieces and nephews, grandparents, aunts, uncles and cousins in that order.
Do I have to leave my property to a family member?
No, you can choose to leave your property to a close friend, charity, place of worship, or even the state. However, the only way to make sure your property does not go to family members is to have a properly executed Last Will and Testament. If you die without a will, the state will generally divide up and give your property to your releavies in accordance with Georgia state law (or the state you lived).
What is an executor and am I able to choose who it will be?
An “executor ” is a person that is named in a will that is appointed with the duty to carry out the instructions specified in will when the maker of the will dies. The executor will pay your taxes and debts and close your accounts. Yes, you can choose who will carry out your will, the person nominated as executor becomes “Executor” only when they take an oath and the will is admitted to Probate court.
Who has to know about my will?
It is a good idea to tell the executor of your will about it and where the original is kept so that upon your passing they can have access to it so that they may execute it. Close family members are also people you might want to know the location of the will. However, if you don’t want to disclose the contents of your will that is up to you. Another person to inform about your will is your attorney, and it is advisable that you leave a copy with them just in case something happens to the original. Furthermore, it is advisable that you have the original copy of your will stored in a safe deposit box, or with your attorney. You can also file and leave your will with the probate court in the county you reside. A modest filing fee is usually charged. But if you anticipate making changes to your will in the future, you will have to get your will back from the Court and re-file the new will when I is completed.
Do I need an attorney to make my will?
No, it is not a legal requirement that you have an attorney make your will. However, if you plan on disinheriting anyone, leaving unequal portions to your children or fear that someone may contest your will it is very advisable to have an attorney draft and help execute the will. Also, the execution of a will must be done with specific formality for the will to be effective and valid, and this is one area where having an attorney’s assistance is highly recommended.
Am I allowed to make changes to my will?
Yes, you are allowed to make changes to your will. To make effective your new will you need to revoke or physically destroy your previous will, or execute and attach a codicil to the will. However, it is usually easier to just draft a new will, or revise a current one, rather than draft and attach a codicil. Codicils were more common before the ability to scan in previous versions of documents into a word processor was common. Most attorneys now know how to scan in an older version of a will or use the previous computer file and make changes to it. Also, it is advisable for everyone to review and if needed, update their will every few years.