As we've discussed before, many people misunderstand the estate planning process and requirements, especially when it comes to the Last Will and Testament. Misinformation abounds as to what actually qualifies as a Will. The concept is even a popular TV trope. Consider Parks & Rec's Ron Swanson's handwritten will, which he composed at 8 years old, bequeathing his possessions to the man or animal who defeats him, or The Middle's Mike and Frankie's often misplaced ‘death napkin,' with only the Heck children's intended guardian scribbled on the back.
In reality, an expression of your wishes in some form does not always qualify as a valid Will. In the state of Georgia, a Will must conform to five stipulations to be legal and valid:
- The Testator (person making the Will) must have capacity to complete a Will.
- The Testator must be at least 14 years old.
- The Will must be typed or handwritten on paper.
- The Will must be signed by the Testator
- The Will must be witnessed and signed by at least two disinterested witnesses.
Consider these common ‘Wills' that in reality do not pass muster…
A holographic will is a document handwritten and signed by the Testator (person making the Will) without being signed by any witnesses. This is not recognized as a valid Will in the state of Georgia. While the holographic Will may be written and signed by the Testator, it has not been witnessed and signed by two disinterested parties. Therefore, it is not accepted as a valid Will in Georgia.
A nuncupative Will is simply an oral Will. Often these are made upon one's deathbed, typically in the presence of two witnesses who could later document the Testator's wishes. While these Wills were actually accepted long ago, they are no longer considered valid in the state of Georgia. In this case, the Will does not meet the necessary qualifications to be a Will in Georgia because it is not in writing and is not signed by the Testator and witnesses.
We sometimes have clients who think they can type out their wishes, send it in an email to someone, and consider it their Will. This is not the case. An email has not been written on paper, signed by the testator and two witnesses.
Handwritten Before a Notary
A common misconception among those taking a DIY approach to their estate plan is that they can write out and sign their Will before a notary. However, a Will is not notarized. Only the self-proving affidavit that is attached to the Will is notarized. The self-proving affidavit is signed by the Testator and witnesses and is notarized as a testament to the validity of the execution of the Will, therefore making the document ‘self-proven' in court. You can learn more about the self-proving affidavit here.
When you begin your estate planning, don't fall victim to common misconceptions about what constitutes a valid Will and estate plan. If you do not follow the requirements for your documents, you, your wishes, and your family could be unprotected. Give Peach State Wills and Trusts a call at (678) 344-5342 to get your planning done the right way.