Wills

It is important to have a valid Georgia Will no matter how much or how little you have.

A Will is a legal document used to decide what happens to your personal property and real estate at the time of your death.

Additionally, your Will is the main tool used to nominate a guardian for children under the age of 18 should both legal parents pass on. Having a valid Georgia Will gives you peace of mind that everyone you care about will be taken of should you pass away.

Why do I need a Will?

By creating a Will, you get to decide how your assets, personal property, and real estate will be divided. If you do not have a valid will at the time of your death, you will not have a say in how your estate will be distributed or to who. That will be determined by Georgia law. Under OCGA § 53-2-1(c), this is done on the following basis:

• If the person is survived by a spouse and not survived by any children, the spouse shall be the sole heir.
• If the person is survived by a spouse and children, the spouse and children shall share equally with the descendants of any deceased children taking that child’s share, provided the spouse does not get less than one-third.
• If there is no spouse and no children, the nearest surviving relatives as defined by the statute shall share be heirs.

Additionally, using a Will can allow you to manage the distribution of the estate. You can use the Will to create trusts that protect minors, those with special needs, and those who need protection from creditors. You can also create life estates that give a spouse or other designated person use of estate property for their life before it is distributed to children and/or other beneficiaries.

A Will allows you to name an Executor of your choice who can be given broad powers to manage your estate without having to petition the probate court. This allows the Executor to sell and distribute estate assets with minimal interactions with the probate court.

Moreover, when putting together a Will with Bardley McKnight Law, we can structure your estate plan to reduce federal estate taxes.

Finally, a Will allows you to choose the person you wish to be the guardian for your minor children. Without a valid Will, who your children live with after you pass away will be determined by a judge.

What are the legal requirements for a Will to be valid in Georgia?

To be a valid Georgia Will, the document must comply with a number of legal requirements. The best way to avoid a Will challenge and lingering family hostility is to work with an experienced Atlanta attorney who understands all the requirements and considerations that need to be taken into account when drafting your Georgia Will.

The individual making the Will, known as a Testator, must meet the following requirements under the relevant statutes (in parenthesis):

• Testator must be at least 14 years of age. (O.C.G.A. § 53-4-10)
• Testator must have a decided and rational desire as to the disposition of your property. (O.C.G.A. § 53-4-11(a))
• Testator must be aware of the contents of the Will. (O.C.G.A. § 53-4-21)
• Testator must execute your will freely and voluntarily. (O.C.G.A. § 53-4-12)
• The Will must be in writing and signed by the Testator or by another individual in the Testator’s presence and at the Testator’s express direction. (O.C.G.A. § 53-4-20(a))
• The Will must be attested and signed in the Testator’s presence by at least two competent witnesses over the age of 14. (O.C.G.A. § 53-4-20(b))

While not a requirement, having a self-proving affidavit, a document which affirms the Will was signed correctly, attached to a Will allows it to be probated without having to find the witnesses. This significantly speeds up the process and prevents the Will from failing if a witness predeceases you or is unable to be located.

What property is controlled by my Will?

Any real estate, personal property, accounts, and other assets belonging to you only at the time of your death are typically controlled by a Will.

However, a house or bank account you own with someone else as joint tenants with right of survivorship would automatically transfer to the surviving owner(s) of that property. Automobiles and other vehicles owned by multiple parties automatically transfer to the surviving owner(s).

If the property was transferred to a trust during the lifetime of the Testator, the property will be governed by the trust document upon the death. Properties that have been transferred to a company such as an S-Corp, LLP, or LLC may be governed by the bylaws or partnership agreement of that company.

Finally, the proceeds of retirement plans such as IRAs and 401(k) plans and life insurance policies typically go straight to the beneficiary as defined by the policy and are not included in the estate. However, if the life insurance has no stated Beneficiary or the estate is named as Beneficiary, then the policy proceeds are typically transferred according to the Will.

Who can I leave my property to?

Under Georgia law, you can leave your assets and property to any person or organization of your choosing. It is important that you demonstrate that you are aware of your immediate family members before leaving your property to an organization to avoid a challenge of your will by a family member..

Additionally, there are many important considerations that should be made when deciding how to distribute an estate, including family dynamics and tax implications. At our Atlanta law firm, our number #1 goal is to capture our client’s wishes in a manner that minimizes any chance of a Will being contested or other estate litigation.

How long does my Will remain valid?

A Will remains valid until it is either destroyed or replaced by an updated Will.

You may have to update your Will if your wishes change. At Bardley McKnight Law, we suggest that you review your Will and other legal documents every year to ensure they still accomplish your goals and wishes. Further, any major life events, such as a marriage, divorce, birth of a new child, adoption, death of a spouse, or significant change in wealth should be followed by a review of your Will and estate plan.

What effect does a new marriage have on my Will?

As a result of the marriage, your new spouse may be entitled to a part of your estate. That interest can be revoked by other legal instruments such as a prenuptial agreement and a new Will.

What effect does divorce have on my Will?

Under Georgia law, following a divorce decree, the former spouse is no longer entitled to any part of their former spouse’s estate. This provision effectively nullifies any provision of the Will that granted the former spouse a bequest.

What effect does the birth or adoption of a child have on my Will?

Under Georgia law, the child is now entitled to a part of your estate. To exclude the child from the estate, a new Will would have to be executed that specifically accomplishes this goal.

Can my Will be changed or revoked?

Because the Will does not become legally binding until death, it can be changed as many times as you would like, provided that you meet the requirements as stated above. There is no need to alert beneficiaries of the change. Moreover, beneficiaries cannot prevent you from changing your Will.

A Will can be revoked either by destruction or simply by executing a new Will. Additionally, you can add new terms to an existing Will by executing a document known as a codicil.

We recommend that you speak with an experienced Georgia Wills attorneys at Bardley McKnight Law if you wish to change your existing Will.

If you are thinking about making a new Will or updating an old one to reflect a major life event like a change in marital status, property ownership, or family composition, we would appreciate the chance to work with you. Please contact us at (470) 308-5409 to get the process started.