Do I Need a Will?
DO YOU NEED A WILL?
This is general information on the subject of wills. It is not meant to provide legal advice or legal counseling. For answers to specific questions or for legal assistance, please consult an attorney.
What is a will? It is a person's last opportunity to legally declare how his or her property is to be divided when he/ she dies.
Q. What is a testator / testatrix?
A. A testator is a male who makes a will. A testatrix is a female who makes a will.
Q. What is a codicil?
A. An addition or supplement to a will, which changes the will by adding or taking something out of the will. A codicil must be executed with the same formality as a will.
Q. What is a self-proving affidavit
A. A legal document which, when signed by the testator at any time during their lifetime after the execution of the will, can eliminate the need for the testimony or other affidavits of the witnesses at probate.
Q. How old does one have to be in order to make a will?
A. All persons 14 years of age and older may make a legally binding will.
Q. What is a joint will?
A. A single will executed by two or more testators and intended to represent the will of all who sign as testator.
Q. What is a mutual will?
A. Separate wills of two or more testators that "mirror" each other and leave the same things to the other person(s).
Q. Does a will have to be in a particular format?
A. No particular format is necessary to constitute a valid will. The law instructs that the whole document is to be considered to determine the intent of the maker of the will.
Q. Does a will have to be in writing?
A. Yes. Georgia law requires that a valid will be in writing and that it be signed by either the person making the will or someone else in the presence of and at the express request and direction of the person making the will. If you are unable to write my name to sign the will, you may sign with a mark such as an (X), then you would use this mark to sign your will. Or, if you normally let someone else sign your name, you may do this in the presence of your witnesses. A statement in the will may reflect that this was done.
Q. What does "being of sound mind" mean?
A. According to the law, anyone who makes a will must have the mental capacity to understand what he / she is doing. Being elderly, intellectually challenged or eccentric does not prohibit a person from being able to make a will. Those witnessing a testator's signature are, by their signature, giving their word that they believe the person making the will has the necessary mental capacity to do so at the time the will is made.
Q. What can a person give away in his or her will?
A. Real property (land), personal property (everything else).
Q. Is it possible for me to leave someone something in my will and keep them from giving it or selling it to someone else?
A. A partial answer to this question is yes. It is legal to leave something to a person only for their lifetime. This is called a life estate. You may dictate that it pass to someone else after that person dies. If you have something else in mind, such as giving something outright but controlling for evermore what that person can do with it, you need to speak with an attorney about specific details.
Q. Do I have to leave what I have to my spouse and/or my children?
A. No. A will is legal even if it leaves everything to complete strangers and leaves out the spouse and other descendants. It is a good idea; however, to mention the spouse and /or children by name or class (spouse, child, children) and leave them at least a nominal gift of $1 - $10 to make it clear that they were not forgotten.
Q. Can I give all of my estate to a charity, church or school?
A. Yes. If there is something found insufficient in the attempt to gift, the court will distribute the property as close to the intent of the testator as possible.
Q. Can I say in my will what is to be done with the proceeds from my insurance policy?
A. Only if the beneficiary of your insurance policy is your estate or the executor of your estate. Otherwise, the money from the insurance policy belongs to the person or persons named as your beneficiary.
Q. Should I leave instructions for my burial in my will?
A. You may do this but it is not advisable. Usually, when family members lose a loved one, the will is not reviewed until after the person has been buried or some other final disposition has been made. In such cases, any special requests you had would be overlooked.
Q. What is an executor or executrix, and do I have to have one?
A. The executor (male) or executrix (female) is the person who presents your will for probate and sees to it that your wishes are carried out. Yo u will need to name one in your will or the court will name / appoint someone.
Q. Is a "living will" the same as a will?
A. No, a living will is a legal document instructing your doctor to withhold or withdraw life-sustaining procedures. (Georgia no longer has a living will law; only one for a Georgia Advance Directive for Health Care.) It is not the same as your Last Will and Testament, or will
Q. If I die without a will, does my property go to the state?
A. Not as long as you have a living relative who can claim your estate. As long as you have relatives who can be found, your property will be distributed according to Georgia's intestacy law. The order in which your relatives receive your property is as follows:
1. Spouse (if there is a spouse and one child, the estate is divided equally between them; if there is a spouse and 2 or more children, the spouse is entitled to 1/3 of the estate and the rest of the estate is divided equally among the surviving children)
2. Children (if a child is deceased, his or her children will divide that portion)
3. Father and mother share equally with brothers and sisters
4. Brothers and sisters (half-brothers and half-sisters share equally with whole-blood siblings)
5. Grandparents
6. Aunts and uncles
7. First cousins
8. Closest other relatives
Q. So, do I need a will?
A. If you want to have a voice in how your property is to be distributed when you die, a will is the best way to accomplish that. If you have minor children in your care or dependents for which you wish to provide, it is responsible to prepare and properly execute a will to make those provisions. If you are married and have children, it is common to want all of your property to pass to your spouse. Without a Will, your children and your spouse will inherit your property. This can be particularly problematic with real estate, such as your home. Your property will be distributed when you die whether or not you have a will; if you have relatives, more likely than not they will wind up with some or all of that property. The choice is yours.
This information is not intended as legal advice but as general education
If you would like to discuss further, please call to schedule an appointment, or book online through our website
GRANTHAM LAW PROBATE AND ESTATE ATTORNEYS
Many people want to control what happens to their property after they pass away, and they may want to make key end-of-life decisions. Walter Grantham offers cost-effective solutions for his clients’ needs and develops a trusting relationship with a foundation of candor and support. He keeps his clients’ best interests as the main focus of his legal representation in estate planning and as an Atlanta probate lawyer.
ESTATE PLANNING
In an ideal world, a decedent’s assets would be passed along in a conflict-free manner. However, this is not always what happens. Disputes often arise in connection with the distribution of assets after someone passes away, but proper estate planning can help protect your interests and desires for how your property should be passed. Choosing the right estate planning instruments is important. Often, estate planning involves preparing a will. If you die without a will, Georgia’s intestate laws will dictate how your estate is to be distributed through the process of probate. Other instruments that may need to be created include durable powers of attorney, living wills, and trusts.
A will is an important estate planning tool. Wills are legal documents that allow you to set forth how you would like your estate to be handled. You may name beneficiaries and specify which assets they should receive. Certain formalities must be followed for a will to be enforceable under Georgia law. Wills must be signed in front of two witnesses, and the two witnesses are also supposed to sign the will in front of the testator. You can make a will self-proving by getting it notarized. Georgia law permits valid wills by testators who are 14 or older, and it also permits oral wills under some circumstances.
Many aging individuals make legal arrangements that put certain assets into a trust, in which they are maintained until a specified event that triggers their distribution to beneficiaries. The trust is separate from the grantor who creates the trust, and the person who oversees it is known as a trustee. Our firm can help you create a trust that takes care of your estate planning needs. Unlike wills, trusts are not subject to probate. Trusts can be revocable, meaning that they can be modified or even revoked during a grantor’s life, or trusts can be irrevocable, meaning that they are permanent. There are different kinds of trusts, set up for different purposes and defining different roles and duties. Some trusts are set up for a special purpose, such as a Special Needs Trust for a disabled child who may need special care as an adult.
PROBATE AND ESTATE ADMINISTRATION
Atlanta probate attorney Walter Grantham not only can set up and organize your estate in a way that maximizes benefits for you, but he also can see wills through probate and handle any litigation that may arise in connection with this process. He has helped many clients with the probate of wills, the administration of intestate and testate estates, petitions for letters testamentary, caveats, and objections to administrators and executors. Our firm understands that dealing with the death of a family member can be emotionally taxing, and it can be overwhelming to have the responsibility of winding up a loved one’s personal affairs. When entrusting probate and estate administration to an attorney, it is vital to choose someone whom you can trust to handle critical and sensitive matters. Our experience allows us to probate an estate in an efficient, orderly, and compassionate way that saves the resources and time of our clients.
Even when careful planning is undertaken prior to death, significant disputes can arise in connection with probate and estates. Often, these disputes are between family members. We can discharge the estate administration duties of an executor or personal representative, and our Atlanta probate lawyer also can represent you in probate and estate litigation. Probate and estate litigation may involve will contests and trust contests. We represent heirs and beneficiaries, as well as executors, personal representatives, and fiduciaries. Trustees owe a fiduciary duty to beneficiaries, and when they fail to live up to their fiduciary duty, it may be possible to bring a breach of fiduciary duty claim. These claims may be brought on various grounds, including self-dealing, conversion, and misappropriation.
A common type of probate and estate litigation is a will contest. We represent heirs, beneficiaries, personal representatives, executors, and administrators in will contests. Will contests may be brought on the grounds of fraud, undue influence, lack of capacity, a failure to follow formalities, or a later-executed will. A testator must have testamentary capacity to execute a valid will. When there is evidence of Alzheimer’s, dementia, or another impairment at the time that a will is executed, this may provide a basis to bring a challenge to the will. In other situations, you may wish to retain a probate attorney in the Atlanta area to bring a will contest if you believe that a witness’ name was forged or that a notary public’s signature was forged. Under Georgia law, a decedent’s surviving spouse and minor child are entitled to a certain amount of the estate. If they were left less than the statutory minimum, it may be possible to petition for a year’s support.
GUARDIANSHIPS AND CONSERVATORSHIPS
Some adults become incapacitated and can benefit from the help of a probate guardian. Our firm can work with you to set up a guardianship or petition for a conservatorship. Georgia recognizes two kinds of guardianships. The first is a guardianship of the person. The second is a guardianship of the estate, which is also called a conservatorship. Sometimes different people are set up as guardians and conservators if both are needed. Any adult without a conflict of interest may apply to be a guardian or conservator, but usually spouses and blood relatives are considered first when determining whom to appoint.
RETAIN A PROBATE LAWYER IN THE ATLANTA AREA
Estate planning and probate can be emotionally challenging for everyone involved. It is important to choose a loyal and dependable attorney. Walter Grantham represents clients in all Metro Atlanta counties and throughout Georgia. Call us at (770) 858-5950