What’s in a Will?

Leslee Champion Hungerford - Attorney in Marietta, GAWhat’s in a Will? Why do I need one? A will or last will and testament is a legal declaration by which a person, the “testator,” names one or more persons to manage his or her estate and provides for the distribution of his or her property at death. In other words, it is a legal description of what you would like to happen to your property after you die.

What Property Is Included In A Will?

Most generally, the will distributes a decedent’s real property (land) and personal property (everything else). The property you own at your death is called your “probate estate” and consists of all property owned by you at the time of your death that is not otherwise distributed under the terms of a contract or by operation of law (I.E. life insurance with a death beneficiary designation, pension and retirement accounts (like IRAs and 401(k)s) with a death beneficiary designation, property owned by you and some other person as joint tenants with right of survivorship, and bank and brokerage accounts with pay-on-death or transfer-on-death designations). Probate property includes your tangible possessions like clothing, jewelry, household furniture and furnishings, cars registered in your name, real estate titled in your name (or in your name and the name of some other person as tenants in common), bank accounts registered in your name with no pay-on-death designation, and stocks and bonds held in a account in your name with no transfer-on-death designation.

Who Can Receive Property From A Will?

There is no specification as to whom property must be left to in a Will and the testator may direct the distribution of his or her probate estate in any manner that is not contrary to Georgia law or public policy. That is, a Will is legal even if it leaves everything to a complete stranger and nothing to a spouse or other relatives. (However it should be noted that any surviving spouse and minor children will be entitled to property from your estate for their support and maintenance for a period of 12 months.)

What Is Required To Make A Will Legal?

Georgia law requires the following for a valid will:

Capacity To Make A Will: A person must meet certain minimum requirements in order to make a will. In Georgia, the legal age to make a Will is fourteen (14) years of age. A person must also know what property he or she owns and must have a decided and rational desire as to the disposition of his or her property. The testator must also know “the objects of his bounty” (i.e. his children, spouse, family, etc.). Finally, the testator must know the contents of the will he is signing.

Freely and Voluntarily Execute The Will: The will must be executed freely and voluntarily by the testator. A will that is made under pressure or coercion is not valid.

In Writing: A will must be written in order to be valid. The will does not have to be typewritten or on any special paper. It can be handwritten. A will may not be oral in Georgia. For example, a videotape of someone expressing his wishes on videotape would probably not be a valid will under Georgia law.

Signed By, Or At The Direction Of, The Maker Of The Will: The will must signed by the testator (person making the will) or someone else in the presence of and at the express request and direction of the person making the Will. That is, if a person cannot sign his or her name (either for an inability to write, or a physical handicap) he or she can make a mark to indicate the intent to sign, or someone can sign the person’s name if directed to do so.

Properly Witnessed: The will must be attested and signed in the testator’s presence by at least two competent witnesses. The witnesses must be at least fourteen (14) years old and must sign their own respective names on the will. Each witness must be competent to witness the will. Under Georgia law, a witness is “competent” if the witness can distinguish right from wrong and can testify in a court of law regarding the facts surrounding the execution of the will. The fact that a witness is a criminal does not render the witness incompetent to witness a will. While it does not affect the validity of the will or the competency of the witness, if there are only two witnesses to a will and one of those witnesses is a beneficiary under the will, the witness loses any rights to property the witness would have received under the will. Therefore, no one who is a beneficiary under a will should witness that will.

Why Do You Need A Will?

Many people wonder if they need a will. That answer depends on whether the individual would like a say in how their property is distributed upon their death. With a will, you decide how your estate will be distributed and you may dispose of your property as you choose. Without a will, your estate is distributed to your heirs, who are determined in accordance with state law. That being said, whether you are married, single, have minor children or own even a nominal amount of personal assets or property, you should have a will.

Benefits of a having a Will include the following:

  • With a will, you have control as to which members of your family receive any part of your estate and how much they receive. Without a Will your estate is distributed to your heirs in accordance with the law.
  • With a will, you have the ability to name an “Executor” to take care of matters and divide the estate according to your wishes. Without a Will an “Administrator” will be named by the court and you have no say as to who this person will be.
  • With a will, your executor can be given full powers to sell your property and manage it without requesting permission of a court. Without a will, your heirs must petition a court for the administrator to be granted these powers.
  • With a will, you can nominate the person whom you want to be guardian of your minor children. Without a will, the choice of guardian will be determined by a court.