While a large aspect of estate planning is protecting yourself and your loved ones – it is also about troubleshooting any issues that may arise in the future. For example, what happens if someone has a problem with a will that is filed in probate court? What can the family do? What rights or obligations does that challenger have? In Brian M. Douglas & Associates’ latest blog, we’re talking about Georgia law, as it relates to creating a will and potentially challenging that will.
What Makes a Will Valid in Georgia?
A will is a legal document in which a person leaves instructions for the distribution of their assets and other property. This estate planning tool can also be used to name a guardian for any children under the age of 18 and to designate an estate executor (also known as an administrator or personal representative) who will help ensure that any final wishes are carried out.
Under Georgia law, in order for a Last Will & Testament to be valid, it must meet five specific requirements. The person creating the will must be 14 years or older and competent. The will has to be in writing – either handwritten or typed. The document must be signed by the person who created it, and also signed by two competent witnesses.
Challenging a Will
Generally, most wills go through the probate process without any major complications. However, sometimes a situation arises where a friend, family member, or another individual might want to challenge the will and delay the probate process. This challenge, in legal terminology, is called a will caveat. (You may also have heard it called a will contest or a will dispute). It is when someone files documentation with the probate court, claiming that there is an issue with the will that they want the judge to assess.
Not everyone can challenge the validity of the will. He or she must have standing on the issue – which means that they are an interested party with a legal right to contest the will in that particular jurisdiction. An interested party is someone who would either be financially harmed or would financially benefit from the current or previous version of the will. They must show that they were either named in the will or should have been named in the will. Under Georgia law, an interested party can be a family member, beneficiary, heir, creditor, a purchaser from an heir, or an estate executor.
Types of Will Challenges
If an individual can prove to the probate court that they have standing and are an interested party, the next step is filing the will caveat documentation. There are several different types of will challenges. Here is a list of the most common issues:
- Forged Signatures: someone falsified the signature(s) of the person who drafted the will, or the person(s) who witnessed the will; this can also include the modification of a will without the original drafter’s knowledge.
- Fraud: someone lied or misled a person into drafting or revising their will, or the document was fraudulently signed or executed.
- Improperly Executed: the will does not meet all of Georgia’s requirements (creator is 14 years or older and competent, document is in writing, document is signed by the person who drafted the will and by two competent witnesses).
- Mental Capacity: the person who created the will did not have the proper mental capacity at the time. This means that they did not understand the current status of their family, what property they owned at the time, or how to distribute that property.
- Outdated Version: the version of the will submitted to the probate court is an older draft and not the current version.
- Undue Influence: the person who created the will was pressured into drafting the document by a trusted family member, friend, or caregiver – so that the will would benefit them, not those who the testator would have otherwise chosen. (“Testator” is the person drafting the will).
Under Georgia law, once a person has been notified that a will has been submitted to the probate court, he or she has ten days to file their will caveat. This ten-day requirement may not apply in situations where the person was not properly notified, or if the person filed their will caveat before the will was submitted for probate.
No Contest Clauses
In some wills, the person drafting the document will include a No Contest clause. This clause typically states that if a beneficiary challenges any portion of the will, he or she risks losing any inheritances that they otherwise would have received. In other words, if you challenge the will, you get nothing. A No Contest clause is designed to discourage beneficiaries from challenging a person’s will after their death. It can be very persuasive. However, if that beneficiary is making their challenge in good faith, it can still be a good idea to go ahead and file that will caveat with the probate court.
Contact the Experienced Estate Planning Team at Brian M. Douglas & Associates
If you have additional questions about who can challenge a will, the different types of challenges, or the deadlines for filing a will caveat, please reach out to us at (770) 933-9009. We would be happy to discuss the best options for you and your family.