Wills – a/k/a Last Will and Testament

A Will, often called a Last Will and Testament, is a document that says who gets your stuff after you die. Not all your stuff. Just your Probate assets. Theoretically, you could change your Will everyday, but the only one that’s valid is your last valid Wil. That’s why they are called a “Last Will and Testament.”

If you don’t have a spouse and you don’t have children, then Georgia law provides: “the heirs shall be those relatives, … who are in the nearest degree to the decedent in which there is any survivor. ” [O.C.G.A. § 53-2-1(c)]. These relatives are known as heirs-at-law. Sometimes this means a relative you’ve never met or that you don’t like gets your stuff. They are referred to as laughing heirs because they laugh all the way to the bank. Garth Brooks had a song about these laughing heirs called “Big Money.”

We think it matters who gets your stuff after you die, so we think everyone needs a Will. A Will is a legal document used to tell your family and the World who gets your stuff after you die. In Georgia, you can make any disposition of property that is not inconsistent with the laws or contrary to public policy (e.g., you can’t leave your money to further a crime or discriminate  against someone on the basis of race, sex, religion, etc.). Georgia law says “No particular form is necessary to constitute a will. To determine whether an instrument is a will, the test is the intention of the maker to be gathered from the whole instrument, read in light of the surrounding circumstances. If the intention is to convey a present interest, though the possession is postponed until after death, the instrument is not a will. If the intention is to convey an interest accruing and having effect only at death, the instrument is a will.” [O.C.G.A. § 53-4-3].

Wills must comply with legal formalities. One of those formalities is capacity. First, you must be 14 years of age or older to have legal capacity to make a Will in Georgia (in most States it’s 18 years of age or older). [O.C.G.A. § 53-4-10]. Testamentary capacity is required. It exists when the testator has a decided and rational desire as to the disposition of property. In Griffin v. Barrett, 183 Ga. 152 (1936), the Georgia Supreme Court said: “Eccentricity of habit or thought does not deprive a person of the power of making a will; old age and weakness of intellect resulting therefrom does not, of itself, constitute incapacity. If that weakness amounts to imbecility, the testamentary capacity is gone. In cases of doubt as to the extent of this weakness, the reasonable or unreasonable disposition of his estate should have much weight in the decision of the question. A person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposition of property to take effect after death, and who is capable of remembering generally the property subject to disposition and the persons related to him by the ties of blood and affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition. If the testator has sufficient intellect to enable him to have a decided and rational desire as to the disposition of his property, this will suffice.”

A Will can be used to settle disagreements or they can be used to bring family back together. Wills can include trusts to protect your loved ones, especially those who have special needs, who are frail or who have financial problems.

Typically a Will identifies someone who manages your estate. That person used to be called an Executor, if male, or an Executrix, if female. Now we call that person a Personal Representative. It’s usually a good idea to have at least one back-up personal representative. People often ask, can I have more than one Personal Representative? They answer is “yes” you can, but I do not recommend it. Committees often have trouble making decisions. A better option is to require that your Personal Representative keep everything “on the table” so other interested parties can see what’s going on.

Wills can waive formalities, like bond or the requirement of preparing an inventory, that would otherwise cost your estate money. To give you an example of what’s involved with preparing an inventory, you can view a video on the Whitfield County Probate Court’s website: [https://player.vimeo.com/video/282849478]

Wills can direct that specific items in your estate go to specific individuals. Or, now, you can attach a list to your Will stating who gets specific items of personal property. Effective January 1, 2021, Georgia law says “Any writing in existence when a will is executed may be incorporated into the will by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.” [O.C.G.A.§ 53-4-4 and O.C.G.A.§ 53-4-5]. A written statement or list disposing of tangible personal property meets the requirements of Georgia law if it: (1) Is signed and dated by the testator; (2) Describes the items and the beneficiaries with reasonable certainty; and (3) Is referred to in the testator’s will. The writing may be referred to as one to be in existence at the time of the testator’s death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation, provided that it is signed and dated on the date of such alteration; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.

Wills should always have a residuary clause. You might call it a “kitchen sink” clause. It says who gets everything else that you didn’t give to someone specific. If you do not give everything away. O.C.G.A. § 53-7-2 authorizes your personal representative to distribute your remaining assets to your heirs a if you died intestate (see discussion of laughing heirs).

You don’t have to hire a lawyer to prepare a Will, but we recommend it. If you do it yourself, or if you buy a cookie-cutter form, you’re not getting legal advice about your circumstances and you might not get the result you wanted. In In re Estate of Curvan, 362 Ga. App. 665 (2022), although reversed on other grounds, a Will was invalid where it was not properly executed (summary judgment was reversed, but the concurring opinion notes that the Will failed under OCGA § 53-4-23(a) because she was both a witness and the sole beneficiary). Lawyers make more money repairing something you break than they charge to prepare a proper Will the first time.

A Will is not effective until two things happen. First, you have to die. [O.C.G.A. § 53-4-2]. Second, the Will has to be probated. The Will itself is not what gives your Personal Representative authority to act. Instead, authority to act comes from a document called Letters Testamentary, issued by the Probate Court. Before issuing those letters, your Personal Representative takes an oath to faithfully execute the terms of your Will.

Here are a few tips:

• Do not write on your original Will. If you do, the Probate Court might believe you revoked your Will and refuse to probate it. Instead, make notes on a separate piece of paper if you decide you want to make changes.
• If you have minor children or if you have special needs children, then in your Will you can nominate a guardian who would care for your child after your death.
• If you have a non-traditional family, you need a Will. A partner you’re not married to is not an heir-at-law. The only way you can leave property to your partner is with a Will or by using a non-probate document such as a beneficiary designation on life insurance or retirement accounts.
• If something happens in your life that makes you very happy, like a birth or a wedding, then dust off the Will and see if you need to make changes. Also, if something happens in your life that makes you very sad, like a death or a divorce, dust the Will off and see if you need to make changes.
• Put your original Will in a safe place. If you have a safe deposit box, put it there and give your Personal Representative access to the safe deposit box. If you don’t have a safe deposit box, then the next best choice is to get a fire proof safe or lockbox for your home. If you can’t do that, then the next best place to put your original Will is in your freezer. Your freezer would be the last item to burn if your house caught fire. Regardless, make sure someone has a copy of your Will in case the original is lost.

As you have probably guessed by now, a Will does not protect you while you’re alive because it isn’t effective until you die. To protect you while you’re alive, you need a Power of Attorney and an Advance Directive for Health Care.

Although we do NOT recommend that you prepare your own Will, an example of a form published by the Southern Judicial Circuit is below:

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Resources:

• Video Series at Council of Probate Court Judges of Georgia
• Freewill.com. Although FreeWill.com is free, EzElderLaw recommends that you hire a lawyer. Although the quote is frequently attributed to Abraham Lincoln, as far back as 1682, William De Britaine wrote “he who will be his own Counsellour, shall be sure to have a Fool for his Client.”
• Fort Benning (Army) Requirements of a Valid Last Will and Testament Under Georgia Law

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