Estate Planning FAQs
We try to keep an ongoing list of concise responses to common questions. However, these responses are no substitute for legal advice. Please contact us directly if you have an issue you need assistance with.
Last Will & Testament
What are the Requirements for a Will in Georgia?
A Last Will & Testament is a formal declaration of an individual’s instructions for the disposition of their property after death. In order to constitute a Will, a document must executed with the formality required by Georgia law. Thankfully, the requirements for a valid Will in Georgia are not too onerous. The document must be in writing, signed by the person making the Will (or “testator”) and attested to by two witnesses who are competent and over the age of 14. A separate document, called a self-proving Will affidavit, normally accompanies a Will and is also signed by the testator and witnesses further attesting that the required formalities for the execution of the Will have been followed. Unlike the Will itself, the self proving Will affidavit must be notarized. The affidavit is not required; however, a Will that is self-proved may be admitted to probate without the witnesses’ testimony. The affidavit also creates a presumption, subject to rebuttal, that the requirements of execution and attestation were met. In practice, a self proving Will affidavit should always accompany a Will when possible.
What Happens if I Pass Away Without a Will in Georgia?
If you pass away without a Will, then your property will be distributed according to the law of intestacy (also called distribution and descent). The Georgia Code contains a schedule of how your property will be divided according to the relation and number of heirs that survive you. If you pass away leaving only a spouse, then all of your property goes to that spouse. If you pass away leaving a spouse and minor children, then your property is divided equally between the spouse and children, although your spouse must receive at least a 1/3 share of your estate. If you pass away without a spouse or children, then your property goes “up” the family tree to parents, then to siblings, grandparents, and other more distant relations in succession.
The heirs of an intestate estate also have some authority to divide property differently than the law provides for. If all of the heirs are in agreement, the property can be distributed in-kind according to the proportions the heirs decide on. This alternative distribution may or may not require an order from the probate court.
Do I Need to Have a Will in Georgia?
In most cases, a Will is recommended as part of a complete estate plan. The primary reason for drafting a Will is that it gives you the power to determine who your property will be distributed to and under what terms, rather than relying upon the laws of intestate succession. Drafting a Will is especially important for parents of minor children. In their Wills parents can nominate who will take care of their children and their property if both parents pass away while the children are still minors. In their Wills parents can nominate both a “testamentary guardian” for minor children, who will make all personal decisions for the child (such as deciding where the child will live and go to school) as well as a “testamentary conservator” who will make decisions regarding the children’s property
However, there certainly are people for whom a Will is unnecessary. Individuals without minor children, who own all assets jointly with right of survivorship (or whose only sole asset is a bank account with less than a $10,000 balance), and who are comfortable with intestate succession of their property may not need a Will. In these cases, the process of drafting and probating a Will may not be cost-effective.
How do you Probate a Will in Georgia?
The first step of the probate process is submitting a deceased individual’s Last Will and Testament to a probate court and proving that it is, in fact, a valid and authentic document that meets all of the requirements of a Will in Georgia. This process begins with a petition for probate. Georgia has two types of probate, common form and solemn form. Common form probate is a quicker and less binding procedure than solemn form. Common form probate can be initiated almost immediately without notice to any heirs or creditors of the estate. This type of expedited probate is normally only useful when an estate contains property that requires immediate management, such as a small business or farm. However, any heir or other interested party can challenge the probate of a will in common form probate up to four years after it has been completed. Some estates may be managed through common form probate at first before a petition for solemn form probate can be heard. Common form probate can also be used in estates that contain only minor personal property where there is no fear of later objection. Common form probate should never be used for estates that contain real estate, however, because that procedure is not sufficient to pass good title to property.
Unlike common form probate, all heirs must receive notice of petition for probate in solemn form. The heirs can agree to acknowledge service of the petition, can be served by mail, or can be served by publication in the paper if their location is unknown. If the Will being probated does not have a self-proving affidavit, then the testimony of the witnesses to the Will may be needed (which can be taken by deposition or interrogatory). The advantage of the petition in solemn form, and why it is used in the majority of cases, is that it is more binding than common form. A decree in a petition for probate in solemn form is binding immediately on all heirs and interested parties.
Is Probate Expensive in Georgia?
Georgians are fortunate in that, by and large, our probate process is relatively quick and inexpensive compared to other states. The fees to initiate the probate process are generally lower than the cost to initiate actions in other courts of record. Many of the forms used in the probate process are also standardized and available for free to the public. Although the process is technical, many people may even be able to complete the probate process without the assistance of a lawyer for smaller estates.
Where the probate process becomes potentially time-consuming and expensive is when objections to probate are filed. Any heir of the deceased individual or other “interested party” having standing may file an objection (or “caveat”) to the probate. Interested parties could include beneficiaries or nominated executors under another purported will of the decedent and any person who will be adversely affected by the probate of the will. An individual must have “standing” to contest the probate of a will. A person who would be injured by the probate of the Will or who would benefit by its not being probated has standing. Even after a Will has been probated, heirs and interested parties can file objections and make demands of personal representatives of the estate that may need to be resolved by the court, which only further delays the process of distributing property to beneficiaries. Due to the potential for cost and delay, many people pursue non-testamentary methods of property distribution, such as revocable living trusts.