Determining the Validity of a Will in Georgia
A last will and testament is the most basic document included as part of an individual’s estate plan.
It allows the person who wrote the document, also known as the testator, to designate who will be responsible for handling his or her estate after the testator has died, as well as who will receive the deceased’s property. It may also designate who will be the guardian for minor children of the testator.
However, certain requirements must be met for the will document to be considered valid.
1. Will Must Be in Writing
One of the first requirements for a last will and testament to be valid in Georgia is the will must be in writing. Georgia probate courts tend to only accept wills in typewritten printed format and not handwritten; however, a handwritten will may be accepted if it has been validly executed. Holographic wills are not accepted in Georgia. A holographic will is a handwritten will that does not include the signature of two witnesses, as is required in Georgia.
A will that is made verbally is not considered valid either. Verbal wills, also known as “nuncupative” wills, are only allowed to cover a certain, limited amount of personal property and are only considered valid under very limited circumstances.
2. Age Requirement
In Georgia, the testator must be at least 14 years old to properly write a will. For many states, this age limit is 18. However, Georgia law requires that the individual be at least 14 for the will to be considered valid.
3. Sound Mind
Not only must the testator be the proper age to execute the will, but he or she must have what is known as testamentary capacity, meaning the testator must be of sound mind.
Testamentary capacity is a legal term that refers to the person’s legal and mental ability to make or modify a will. The person must have the ability to fully realize the consequences of what he or she is doing when making the will and must understand the decisions that are being made.
If the individual’s mental capacity is at all in question and the will has been executed despite the fact that the testator may not be of sound mind, the testator’s mental capacity may be grounds to contest the will. .
4. Testator’s Signature
At the end of the document, the last will and testament must be signed by the testator, with his or her own name, by official mark or by another name that is meant to authenticate the document as his last will or testament. A will can also be signed by another individual under the direction of the testator.
5. Signature of Witnesses
In addition, the last will and testament must be witnessed by two competent witnesses. They must have personally witnessed the testator signing the document for it to be valid.
It is preferable that the witnesses be considered disinterested, meaning he or she has no personal stake to the will. However, a witness may also be a beneficiary, but any specific gift in the will to that beneficiary will be considered void unless two other disinterested witnesses were present as well.
It is for this reason that the two disinterested witnesses are recommended so that no questions of conflict be raised in the event a beneficiary is present when the will is executed.
Not only must the witnesses be present when the will is signed by the testator, but they must also sign their names to the document.
6. Does the Will Need to Be Notarized?
Georgia law does not require that the last will and testament be notarized for it to be considered valid. Having the two disinterested witnesses present are sufficient for the document to be considered valid.
However, Georgia law does allow a person to make the will “self-proving,” and a notary is needed for this process. Having the will be self-proving helps speed up the process for probate because the court can accept the will without needing to contact the two witnesses who signed the document.
To make the will self-proving, the testator and the witnesses will sign in the presence of a notary who will also sign that the individuals who signed the will are who they say they are. It is a simple step that makes the probate process more efficient and streamlined for the executor once the testator is deceased.
7. Listed Beneficiaries
The purpose of a last will and testament is to help distribute the testator’s assets according to his or her wishes.
To properly accomplish this task, the last will and testament needs to designate who these beneficiaries are that will receive the deceased testator’s property. Otherwise, the probate court will be forced to make this determination so that the property is not left unclaimed.
What Happens if the Will is Determined to be Invalid?
If the probate court rules that there is no valid will, the testator’s property will be distributed according to the Georgia’s laws of intestate succession.
Under Georgia’s intestate laws, if the deceased person left a spouse and children, they will share the estate equally, with the exception that the spouse will receive at least one-third of the total amount. If the deceased did not leave a spouse or any children, the property will go to the parents of the deceased if living, if not to the siblings, if living, and on down the line of succession according to the intestate laws.
Contact Brian M. Douglas, LLC Today
If you are not sure you need an attorney, come in for a consultation to discuss your situation. Please contact our office if you or someone you know has recently been appointed personal representative of a loved one’s estate and has questions about what to do next.
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