Writing a will may seem like a daunting task. The idea of going through your assets and having to consider future poor health and demise isn’t anybody’s idea of a good time. However, if you fail to write a will, your most prized possessions, including your children’s guardianship, will instead be left up to the state.
Every state has a specific set of laws, but most basic will-writing rules are similar across states. In order for a will to be valid in Georgia, five requirements need to be met.
The person creating the will must be of a competent mind and rational desire. According to Georgia Code § 53-4-11(a), evidence of testamentary capacity must exist within the person to show that they have a decided and well-thought desire as it pertains to the future transfer of their property.
In addition, Georgia Code § 53-4-12 states that “A will must be freely and voluntarily executed. A will is not valid if anything destroys the testator’s freedom of volition, such as fraudulent practices upon the testator’s fears, affections, or sympathies; misrepresentation; duress; or undue influence whereby the will of another is substituted for the wishes of the testator.”
In other words, it must be very clear that the person is not being forced or coerced into creating or dispensing property against their own volition.
According to Georgia law, an individual must be at least 14 years of age or older to create a will. While that may seem young, for those individuals with disabilities or diseases who are wanting to create legal documentation and protection of their assets, will writing is always a consideration.
In the state of Georgia, oral wills (wills that are recorded via audio or video) are not valid. While the will doesn’t necessarily have to be formal, it absolutely must be written – typed or by hand. The will also must also be attested to by two or more competent witnesses.
According to Code § 53-4-20, “A will shall be in writing and shall be signed by the testator or by some other individual in the testator’s presence and at the testator’s express direction. A testator may sign by a mark or by any name that is intended to authenticate the instrument as the testator’s will.”
The clearer the statement of purpose and direction within the will, the better it will hold up in a legal or probate process after an individual’s death. While scrawling on a napkin is always an option, it is best to contact a professional estate planning attorney to ensure the protection and distribution, and safety of your property, financial holdings, and especially family members.
You must sign your own will for it to be valid in Georgia. The signature can be the name, signature, or even mark but it serves as an authentication of the document. If the person is unable to sign due to a physical disability, they may instead ask someone to sig on their behalf.
Georgia does not require the will to be notarized, but having it notarized can significantly help speed up and simplify the probate process. A will is not the right or only course of action for those looking to plan their estate. In fact, a living trust may work best for your situation to help prevent the probate process.
If you have any additional questions regarding creating a will or debating between a will and trust, please contact the friendly team at Smith Barid at 912-244-7922 or fill out our contact form here.