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Wills FAQ

Do I Need A Will?

Do you want to have a voice in who raises your children when you die?

Do you want to have a voice in where your property goes when you die?

If you answered “Yes” to either question, a Will is the best way to accomplish that. If you have minor children in your care or dependents that you wish to provide for, it is responsible to prepare and properly execute a Will to make those provisions. Your property will be distributed when you die whether you have a Will or not. If you have relatives, more likely than not they will wind up with some or all of that property.

A Will is NOT required under the law. The choice is yours. But why in the world would anyone let the government make these most important decisions?

Think about this: Do you want the government to determine the fate of your children and your property when you die. If not, then you should have a Will.

Frequently Asked Questions:

Q. What is a Will (also called Last Will and Testament)?

A will is a person’s last opportunity to legally declare how his or her property is to be divided when he/she dies.

Q. Can I change my will any time I want?

Absolutely! But, you need to be sure any changes comply with Georgia law.

Q. What is a Self-Proving Affidavit?

A legal document which, when signed by you at any time during your lifetime after the execution of the Will, can make probating the Will much easier and quicker.

Q. Can anyone make a Will?

All persons 14 years of age and older who are of “sound mind”, may make a legally binding Will.

Q. Does a Will have to be in a particular format?

No particular format is necessary to constitute a valid Will.

Q. Does a Will have to be in writing?

Yes. Georgia law requires that a valid Will be in writing and that it be signed by either the person making the Will or someone else in the presence of, and at the express request and direction of, the person making the Will.

Q. If I can’t read can I still make a Will?

Yes. It would be necessary for someone to read the entire document to you.  This should be done in the presence of the two witnesses who will affirm by their signatures that this was done. Individuals who suffer from hearing and speech impairments and visual impairments can also make Wills.

Q. If I am unable to write my name to sign the Will, can I still make a Will?

Yes. You have two options. If you sign other documents with a mark such as an (X), then you would use this mark to sign your Will. Or, if you normally let someone else sign your name, you may do this in the presence of your witnesses. A statement in the Will will be necessary to reflect that this was done.

Q. What does “being of sound mind…” mean?

Just because one is elderly, intellectually challenged or eccentric, does not prohibit him or her from being able to make a Will. In addition, a diagnosis related to incapacity or insanity does not necessarily completely prohibit one from being able to make a Will.  If a person has lucid periods and the necessary capacity at the time the Will is made, a person can make a Will.  All that the law requires is for a person to have the mental capacity to understand what he or she is doing. Witnesses to a Will, by their signatures, are giving their word that they believe the person making the Will to have the necessary mental capacity.

Q. What can a person give away in his or her Will?

Real property (land), Personal property (everything else).

Q. Is it possible for me to leave someone something in my Will and keep them from giving it or selling it to someone else?

Yes, with certain limitations. It is legal for you to leave something to a person only for their lifetime. This is called a life estate. You may dictate that it pass to someone else after that person dies. If you have something else in mind, such as giving something outright but controlling forever what that person can do with it, you need to speak with an attorney about specific details.

Q. Do I have to leave what I have to my spouse and/or my children?

No. A Will is legal even if it leaves everything to complete strangers and leaves out the spouse and other descendants. But, it is a good idea to mention the spouse and /or children by name or class (spouse, child, children) and leave them at least a nominal gift of $1.00 – $10.00 to make it clear that they were not forgotten. Your spouse and children might have other rights to some of your property in spite of this.  Be sure to discuss this with an attorney.

Q. Can I give all of my estate to a charity, church, or school?

Yes.

Q. Can I say in my Will what is to be done with the proceeds from my insurance policy?

No, unless your estate or your executor/executrix is the beneficiary of the life insurance proceeds.  Generally, life insurance proceeds pass directly to the beneficiary named in the life insurance policy.  You may check with your insurance company or agent to verify or change your beneficiary.  In most cases, you will be required to leave your life insurance to your spouse.  You will need your spouse’s written consent to leave the proceeds to another party.

Q. Should I leave instructions for my burial in my Will?

You can but, in most circumstances, your family will not see this provision until after your final arrangements have been made.  There are other documents which provide an opportunity for you to detail all of your final arrangements and leave them to give guidance for your loved ones.

Q. If I want statements made to certain people, can I put them in my Will?

Yes. Some people leave messages in their Wills that they want made only after their deaths. If you decide to do so, remember that these are the last words that your loved ones will hear from you. There would be no opportunity for completion, deletion, or corrections.

Q. If I decide to leave my children and or spouse out of my Will, can they still get some of what I leave?

Yes. You may exclude anyone you choose from your Will. In some cases, however, a spouse or a minor child or minor children may ask the court for a portion of your estate to support him/them for twelve months (Year’s Support). This may or may not apply to you. If you choose to leave a child(ren) or spouse out of your Will, you should specifically state that this is intentional.

Q. What is an executor or executrix, and do I have to have one?

The executor (male) or executrix (female) is the person who presents your Will for probate and sees to it that your wishes are carried out. You will need to name one in your Will or the court would have to name/ appoint someone.

Q. What if my family doesn’t want to probate my Will?

The law does not require that the Will be probated but, once the Will is filed, any person having an interest in the Will can apply to the court to have it probated. The law requires that a person having possession of a Will file that Will with the proper probate court upon your death. His or her failure to do so can result in a fine and a jail sentence.

Q. Will my heirs have to pay any estate or inheritance tax?

That depends upon the value of your estate. Check with an attorney for your specific situation because the tax laws are constantly revised. Most people do not need to worry about this. For example, in 2012, an estate was not subject to estate and gift tax unless its value exceeded $5.12 million.

Q. I had my Will prepared in another state, do I have to make another one just because I live in Georgia now?

Not necessarily. A will prepared in another state may be valid in Georgia as long as it has been executed according to requirements. You should have it reviewed by an attorney to be sure. Also, a Will prepared in Georgia could be valid in another state if it meets the requirements of the other state.

Q. What happens if I die here and own property in another state? Does my probated Will give my beneficiaries ownership of that property?

Not without taking some kind of affirmative action in that state, usually in the other state’s Probate court. The law of the state where the property is located will determine what procedures must be followed in that state.

Q. What happens if I’m living in another state when I die but have property in Georgia?

A petition for “No Administration Necessary” can be filed to dispose of the property. This petition should be filed in the probate court in the county where the property is located.

Q. Can my executor legally handle my affairs now?

No. Your executor/executrix’s job does not begin until after you die.

Q. My spouse has an illegitimate child. Will he/she be able to get anything from my husband’s estate if he dies without a Will?

Yes, if there is clear and convincing evidence that the child is that of the father. Such evidence may include a court order declaring the child legitimate, a court order establishing paternity, a sworn statement by the father acknowledging that he is the father, or the father signed the birth certificate. Your husband should discuss this with an attorney as soon as possible.

Q. How long is my Will valid before I need to revise it?

Unless something happens to revoke your Will, you do not have to revise it unless you want to make changes to your Will.  Some things that could force you to make a new will include a child born within ten months of the death of the testator (deceased person), a child is adopted, a divorce occurs, or the testator marries.  Generally, if any of these events occurs after your Will has been executed, your Will is automatically revoked, unless the Will states that these events should not revoke it. Be sure to have an attorney review this with you.

Q. Is a “Living Will” the same as a Will?

No, a Living Will is a legal document instructing your doctor to withhold or withdraw life-sustaining procedures. (Georgia no longer has a Living Will law, it has been replaced by Georgia Advance Directive for Health Care.) It is not the same as your Last Will and Testament, or Will.

Q. If I die without a Will, does my property go to the state?

Only if you have no living heirs. Generally, your property will pass to the following:

1. Spouse (if there is a spouse and children, the spouse is entitled to 1/3 of the estate and the rest of the estate is divided equally among the surviving children)

2. Children (if a child is deceased, his or her children will divide that portion)

3. Father and mother share equally with brothers and sisters

4. Brothers and sisters (half brothers and sisters share equally whole-blood siblings)

5. Grandparents

6. Aunts and uncles

7. First cousins

8. Closest other relatives

Q. How do I revoke a Will?

You may can revoke a Will in writing or by action, such as tearing it up, crossing it out, etc.)

Q. What happens if the only property left is a car or a bank account or furniture?

It may be possible to file a petition for “No Administration Necessary” if there are no debts of the estate and all of the heirs agree upon how to divide the property. This would be filed in the probate court in the county where the person died.

Q. What happens if a person dies and did not have a Will and does have a lot of property and debts?

There are two possible options. First, if there is a spouse, the spouse may wish to speak with an attorney about filing for Year’s Support to provide support from the estate of the decedent. The second option is to petition for an Administration of the Estate. In such a case, the court would appoint someone to be the “administrator” to see to it that the heirs are identified, the debts are paid and the property is properly distributed according Georgia law.

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