Why make a will?
A will allows you to plan the disposition of your property upon your death. In other words, it is your statement of who gets what.
If you don't have a will, or if you don't take some other steps to plan your estate, your property will be divided upon your death according to the laws of your state of residence.
If you are a Georgia resident, your spouse and your children will divide it equally, except that a spouse cannot end up with less than 25%. If you have no spouse or children, under current Georgia law your parents would receive your property.
If your parents are deceased at the time of your death, your brothers and sisters would divide your property. If you have no brothers and sisters, there are further rules about who are your next of kin.
A will must meet legal requirements to be enforceable. A will must be in writing, and under Georgia law must be signed in the presence of two witnesses. Other states may require three witnesses, or a Notary Public.
A person making a will has to be of sound mind when the will was made. That means a person has to have the mental capacity to understand the choices being made. If a court proceeding for construction of a will is required, the goal of the proceeding is to determine the intent of the testator and put that into effect.
A will must be probated in order to put the will into effect after death. The processes of probate vary from state to state. In Georgia, the process is relatively efficient.
If there are no objections to the will, and the witnesses can be located, probate can sometimes be accomplished in a period of a few days.
A will cannot be amended except by a written document that is witnessed as required for an original will. Many problems are created when people have a will and strike out portions, then write changes in by hand without these changes being witnessed. These actions can void the will.
A person who wants to amend a will can instead prepare a codicil, or a new will, or a “republication” of the old will can be done.
Under Georgia law, certain actions can void a will. These include birth of a child, adoption of a child, marriage, or divorce. However, if the will provides that it is written in contemplation of such an event, then that event will not void the will. Often wills are drafted to plan for additional children.
A will is not rendered void if it provides that any future children are to be included in the bequests. If a will does not contain such a provision, it can be rendered void if the maker has additional children. A number of people may have voided their will in this way, without knowing these rules.
There are alternatives to wills such as revocable living trusts. This involves creating a trust, which is a legal entity separate from the maker.
Then, all assets are transferred to the trust and owned by the trust. The trust can name beneficiaries, so after the death of its creator the property in the trust can go to the beneficiaries without having to probate a will.
Such a trust involves more legal work up front than a will, but it can limit or replace the process of probate.
Another alternative to a will is jointly titled property. Under Georgia law, if property is owned by persons as joint tenants with survivorship, after the death of the first owner to die, the survivor receives title to the property.
In estate planning, there are related topics such as living wills and powers of attorney. A will takes effect only at death. It is revocable until the maker dies. A durable power of attorney can be used for disability planning to have someone manage affairs when a person is unable to manage his or her own affairs during life.
A living will or health care power of attorney can be used to control whether life support will be used to prolong a person’s life when he or she is unable to make these decisions.
In connection with estate planning or business planning, we also offer asset protection and formation of corporations and LLC’s for our clients.
Our firm has been assisting clients with wills and estate planning matters in Gwinnett County for over 30 years. Give us a call 770-972-3803 and you and your loved ones will be glad you did.