What is a Will?
A Will, also called a Last Will and Testament, simply lists property that you own, and how you want to distribute it upon your death. Along with the Advance Directive for Healthcare and power of attorney, it is one of the three foundational estate planning documents in Georgia. For people with a will-based estate plan, the will is the primary legal document that directs the distribution of assets upon your death.
What does a Will do?
The Will directs the distribution of your assets after you die. Property that may be distributed under the will includes real estate, automobiles, jewelry, art, and other personal property, as well as money, stocks and bonds, etc. Certain property, such as real estate or financial accounts held jointly with another individual or brokerage accounts and insurance policies that have a designated beneficiary are typically not distributed through the will.
Does a Will avoid probate?
No, it does not. By its very nature, a will distributes assets through the probate process. But, in Georgia, probate is generally not a hard process. To avoid probate, people will generally utilize a trust-based estate plan.
Does the Will make arrangements for my young children if I die?
The will should make arrangements for minor children if no other custodial parent survives and should designate both a guardian to care for the children and a trustee to manage their assets until they reach the age of majority (at the least). Many parents choose to hold property for their minor children in a testamentary trust (that is created as a part of the will) until the children reach a certain age, or to release it in stages (such as 1/3 at 21, 1/3 at 25, and the final amount at 30) so that their children do not squander the assets they receive, and to ensure that the children receive the assets at a time when they are mature enough to manage them.
Who can make a Will?
Under Georgia law, any person 14 years of age or older, with the capacity to make a will may do so. Capacity is generally defined as being able to make rational decisions as to the disposition of property.
How is a Will executed?
The testator (meaning the person making the will) and two witnesses who are not beneficiaries of the will (or who serve in a capacity under the will) shall sign the will. It is also wise to have the testator and the two witnesses sign an affidavit before a Notary Public attesting that they each signed the will, that the testator declared the will to be his or her will, and it was his or her intention that it be the will. This affidavit is then attached to the will, and, when filed for probate upon the testator's death, will permit the will to be admitted to probate without the testimony of one of the witnesses.
Should a Will ever be updated?
Once your will is signed and in effect, it is important that you review your will periodically to ensure that it continues to reflect your wishes, and that your situation has not changed in a way that renders the will void. For example, the birth or adoption of a child will render your will at least partially invalid, unless the Will expressly provides that it is to be valid in such a circumstance. Likewise, getting married also invalidates the will at least partially, and obliterating or destroying the will itself (such as attempting to make written changes to it or marking out a section) would also make it invalid.
Is it hard to make a Will?
The process to complete a will is not difficult. We walk our clients through a comprehensive questionnaire to understand their situation, their goals and objectives, and help them make key decisions to determine how to dispose of property at their death, and how to make sure that their minor-aged or young adult children are appropriately provided for. We can do this with relatively little time required from the client, and the fees are reasonable. If you've put off your basic estate planning, now's the time to get it done. Contact Peach State Wills and Trusts today to discuss your situation and see how we can help with your planning needs.
What happens if I die without a Will?
If you die intestate (without a will), Georgia intestate succession laws will govern the distribution of your assets. The state's process will likely not match your wishes. For example, many people assume their assets will automatically go to their surviving spouse if they die without a Will. In reality, this is not so. If you have children, your spouse could inherit as little as 1/3 of your estate. This is why is it imperative that you put your own plans in place.
As a final note, Georgia also has a unique law that provides for a year's support for a deceased person's spouse and minor children, whether the deceased had a will or not. Under this statute, a spouse and minor children may receive an award of property or money equal to a year's support. This distribution takes precedence over all other debts, except secured debts.