What Is a Last will and Testament? – Probate Point of View

A last will and testament is a legal document that controls how most of your assets and liabilities are distributed after your death.

A valid will allows you to leave assets to people who would be excluded by the laws that control the distribution of property after your death. It empowers you to change how your property will be distributed to your surviving spouse and other family members, to set up caretakers for your children, or to create requirements for inheritance.

In short, a last will and testament allows you to have some control over how your assets, financial accounts, and liabilities are managed after your death.

What Is a Last Will and Testament?

A last will and testament is a legal document created to express a person’s last wishes, being at the same time one of the important estate planning tools.

It is drafted prior to the person’s passing and often explains what the person intended for their property and possessions, known as estate, real or personal. 

A last will and testament can also handle matters involving dependents, account management, and financial interests.

In the event the deceased has children, a valid will may also include instructions as to who will care for them.

How Does a Last Will and Testament Work in Georgia?

A will directs how your heirs will inherit assets of your estate – such as bank balances, real property, or other prized possessions – after your death, detailing who will receive what and what amount.

If you have a minor child (classified as under 18) or other dependents, you can establish in the will the guardianship (and conservatorship) arrangements for them after you pass away. The conservator can also be appointed to manage any inheritance your children may receive until they reach their majority.

If you have a business or investments, your will can specify who will receive these assets and when. A testament also allows you to direct your assets to:

• one or more charities of your choice.
• an institution or organization (other than a charity).

A person writes a will during their lifetime and names an executor who is obligated to administer his estate. However, the instructions included in the testament are only carried out after the testator’s death. A probate court usually supervises the personal representative to ensure that the wishes specified in the will are carried out.

Although an estate plan would typically be more than just a will, a testament is the primary document that a probate court uses to guide the settlement of an estate.

Any assets that have designated beneficiaries on the asset itself, such as life insurance policies, qualified retirement accounts, or brokerage accounts, are not included as estate assets and pass directly to the designated beneficiaries.

The Importance of Having a Last Will and Testament

A valid and up-to-date will ensures that personal property and assets are divided between the close family members and other people you wish to inherit. Without a legally valid document establishing this, your estate won’t necessarily be bequeathed according to your wishes.

Benefits of having a will include: 

Decide who will receive what and how much from the estate — and who does not.

If a person dies without a will, a probate court will distribute the estate according to the intestacy laws of Georgia. This means the direct heirs of the deceased will receive the estate, which may align or not with the decedent’s wishes.

Drafting a will is the easiest way to ensure that your family heirlooms and sentimental possessions are not in the hands of an ex-spouse or estranged relative.

Determine who will manage your estate

The person responsible for administering the decedent’s estate is known as the estate executor (or personal representative) and has significant responsibilities. You can appoint someone organized, trustworthy, and competent in your will, taking the burden off of your family to choose after you pass away. 

Many people select family members as personal representatives. However, this is optional and may not always be the best option if you are worried about family disputes.

Choose who will take care of your minor children and your pets

A will allows you to decide who will care for your minor children when you pass away. The surviving parent will usually get sole legal custody if the other parent dies. But if you die intestate and your other child’s parent is not available or alive, a court will appoint a legal guardian for your minor.

Appointing a trusted person in your will ensures this decision stays with you, and the right people will be responsible for all your children’s daily needs, including food, housing, health care, education, and clothing.

Having a pet could be a great reason to make a will to be sure they will have a home after you pass. According to the law, pets are considered property and can’t inherit anything. But in a will, you can name a guardian for your pet and express directions to leave them some funds to provide for your pet’s care.

Lower the potential for family disputes

A complicated family dynamic is a good reason to have a will.

When you die without a testament, a probate court will decide how your estate will be divided, and some family members may have differing views on how your assets will be distributed.

This situation might create friction and even fights, sometimes lasting a lifetime.

Having a will solves the problem by clearly establishing the beneficiaries of your estate upon your death.

Facilitate the probate process, saving money and stress for your loved ones

Probate is a legal process for establishing the validity of a will and generally refers to the probate court process for distributing an estate.

Depending on each situation, the probate process can be longer or shorter and more or less expensive. The time and cost depend on factors like the size and value of your estate and the problems that might occur.

A clearly drafted will could minimize unnecessary delays and quickly settle disputes between your family members.

Avoid legal challenges

A legally valid will is a binding document that expresses your wishes and includes clear instructions on what will happen to your real and personal belongings when you are no longer alive.

A well-drafted proposal may reduce the risk of legal challenges. Your unhappy relatives may think twice before contesting your testament.

Support your favorite causes and leave a legacy

Many people have various causes or charities they supported during their lives and would like to continue to do so after they pass away.  

When you write a last will, you could designate one or more charitable organizations as beneficiaries of your testament, leaving a portion of your estate to them.

Leave instructions for your digital assets

Your digital assets may include online accounts such as social media accounts, e-mail accounts, and digital property and files (videos, photos, domain names, websites, blockchain-based finance, etc.).

In your will, you can designate a digital executor to manage all these assets after your death and also include information about how you want them to be managed (for example, if you want a social media account to be closed).  

Decide what will happen with your business 

As a company owner, you should create a will to ensure that the right people take on the responsibility of your business and its assets and/or shares. Your testament may include information on who will manage the business in the event of your passing and who will ultimately receive it.

When the beneficiary is a minor child at the time of your passing, you can also name a conservator to administer your minor child’s assets until he turns 18 or until they become of age.

You can always update your will

You can (and should) update your testament and will as your circumstances change. Your most recent will is usually the most authoritative.

You would like to review and update your testament for many reasons. For example, your life circumstances would change in the event of the birth of a new child, a divorce, the death of your spouse, or of a relative you designated as one of your estate’s beneficiaries, etc.  

All these benefits are just some examples of the reasons for which you should have a will. However, there may also be other benefits that are not listed here.

What You Can’t Do with a Will?

Avoid probate

Many people believe having a will with designated beneficiaries and a named executor is enough to avoid the probate process. 

Unfortunately, a will doesn’t seamlessly transfer assets to your beneficiaries. According to the state’s laws, the testament must be probated through the probate court for it to be considered valid and for the decedent’s estate to be distributed.

Instruct on funeral arrangements

While it may be possible to include your preferred funeral arrangements in your last will & testament, it is not typical to have them listed here. Usually, you have to create separate documents for funeral expenses, to which a trusted family member and your executor have access. 

However, we recommend speaking with an estate planning attorney if you need to create a will and/or funeral arrangement documentation.

Make conditional gifts 

In some occasions, the gifts you make in a will can’t come with the obligations of respecting specific rules or doing something special to take possession of the portion of the inheritance they are entitled to. 

For example, the will’s beneficiaries can’t be forced to marry, divorce, or change their religion to receive their bequest.

Reduce estate taxes 

A will doesn’t allow you to reduce or avoid taxes that will be owed on your estate.

Leave money to pets

You can’t use your will to leave any money to your pets, as they can’t inherit any property. But when your cat, dog, or other pet is important to you, you can consider designating a trusted individual to adopt them. You can also use your testament to provide that person with the funds he needs to care for your pet(s).

Arrange care for someone with special needs

To provide long-term care for a loved one with special needs, one option is to set up a special needs trust. A trust is a fiduciary agreement that is not subject to probate. It can be used to provide ongoing income for a person with special needs and may not affect the government benefits that they are entitled to. It is best to speak with an experienced estate planning attorney to discuss options such as a special needs trust.

Leave Certain Kinds of Property

You can’t use your will to leave:

• Property you hold in joint tenancy with someone else (such as joint tenants with rights of survivorship). At your death, your share will automatically belong to the surviving co-owner. A will provision leaving your share would have no effect unless all co-owners died simultaneously.
• Property you’ve transferred to a living trust.
• Proceeds of a life insurance policy for which you’ve named a beneficiary.
• Money in a pension plan, individual retirement account (IRA), 401(k) plan, or other retirement plan for which you’ve named a beneficiary on forms provided by the account administrator.
• Stocks or bonds held in beneficiary (transfer-on-death or TOD) form. If you want to change the beneficiary, contact the brokerage company.
• Money in a payable-on-death bank account. If you want to name a different beneficiary, just fill out a simple form at the bank.

Types of Wills

There are many legal and valid types of wills that are legal and valid, but the type you choose strongly depends on many factors, such as the probate law in the state where you live or how large and complex your estate is.

The testaments must meet specific criteria in Georgia in order to be considered valid. Here are the main types of wills:

Simple Will

Known also as the Last Will and Testament, this is a legal document in which you can express your basic wishes regarding your money and property, real and personal. 

This document also allows you to name an executor to administer your estate and designate a guardian for any minor children or dependents. 

Joint will

Similar to mutual wills, joint wills are typically used by married couples. These wills mirror each other regarding the choice of Executor(s) and specified beneficiaries. 

Testamentary trust will

This will includes trust assets and is created within the Last Will & Testament that takes effect after your death and the probate process.

It may be used in instances where beneficiaries have special needs or your minor surviving children need specific care over a long period. There are also other reasons not listed here to have a testamentary trust will.

The trust distributes all or a portion of your assets after you pass.

Living will

This type of will is not the same as a last will and testament.

Also called an Advance Healthcare Directive, it typically documents how you would like to be taken care of if you are unable to make certain healthcare decisions. 

Holographic will

This is a handwritten will, and it might result from extreme, unexpected circumstances such as war or another life-threatening situation. Holographic wills are only signed by the testator without any witnesses.

This type of will is not valid in Georgia. 

Nuncupative will

Nuncupative wills are oral wills that express the final wishes of the deceased. This type of will is not written down. 

Like the holographic wills, nuncupative wills are not valid in Georgia. 

Will Requirements from a Probate Point of View

Georgia has specific criteria for a will to be considered valid. It is best to speak with a probate attorney about the validity of your loved one’s will. 

For a will to be valid, the following must be true:

Be sound of mind

A will requires that the testator be over the age of majority, know which assets he has, and what it means to leave your property to others.

However, under Georgia law, the will is not automatically invalidated if the deceased had dementia or was in a weakened mental state. Instead, the court will consider all evidence surrounding the will’s creation to determine whether it meets Georgia law’s requirements.

The Will must be signed by the deceased and two witnesses 

A will must be signed to be valid, and the person signing the will should have the testamentary capacity to do so. According to Georgia probate law, your signature should be witnessed by two persons who are not beneficiaries of the will. 

It is important to note that Georgia does not require a will to be notarized. If an attorney wrote the testament, a second document called a Self-Proving Affidavit will be attached to the Will.

Last will and testament vs living will. What’s the difference?

The Last will and testament documents the testator’s wishes for their money and property, real and personal. It also states the testator’s choice of an executor who will administer the estate.

Unlike the testament, a living will doesn’t express your wishes regarding your estate after you pass away. This legal document allows you (while you are alive and mentally capable) to empower another person to make decisions and give health care directives when you become incapacitated. Healthcare proxies can communicate with your doctors to prevent unwanted treatments and make sound decisions on your behalf.

What Should You Include in a Will in Georgia?

Identify assets and beneficiaries

A will requires you to identify the assets and property to be bequeathed and the identity of your beneficiaries (also known as named beneficiaries).

Name an executor

A will should name an executor to carry out the will’s instructions according to the wishes of the late person.

When you have minor children or dependents, you can also use the testament to designate trusted persons to care for them and provide them with the financial funds to do so. 

Your signature 

As mentioned before, the testator and two witnesses (who are not the beneficiaries of your testament) must sign the vill. 

A no-contest clause

If you are concerned about someone arguing about the validity of your will, you can include a no-contest clause. This type of clause specifies that a beneficiary cannot inherit if they challenge the validity of a will after your death.

Preferably a notary, but not required

Even if, according to Georgia state law, you do not need to notarize your will to make it legal, it is always preferable to have a notary who authenticated your testament.

Selfproving affidavit 

If an estate lawyer wrote your will, you will also find a second document called a Self-Proving Affidavit attached to it. 

There may be other requirements to include in a will in Georgia; we recommend speaking with a probate attorney to discuss your specific situation.

Does a Last Will and Testament Need to Be Notarized?

It is not required but strongly recommended. Eliminating some procedures that would normally be required will make the will easier to probate.

The self-proving affidavit does have to be notarized to be valid. However, not having a Self Proving affidavit will not invalidate the will; it will just add some additional steps you must take to open the estate.

What Makes a Will Invalid?

Some items that may make a will invalid in Georgia:

• The testator does not sign the will. 
• There are no witnesses to the will. 
• The testator lacked the capacity to create a will, but the petitioner(s) who challenge the will should prove this. If he can present sufficient evidence to the probate court, then the judge has the authority to declare the will invalid.
• A third party exercised an undue influence over the testator when the will was created. Proof of this would also be required. If sufficient evidence can be presented to the probate court, then the judge has the authority to declare the will invalid.

Other items may make a will invalid in Georgia; these are just a few examples.

What Happens If You Don’t Have a Will?

If the deceased does not have a will when they pass away, this means they die intestate. In this situation, the surviving relatives open a probate process, and the decedent’s estate is to be administered through the intestate laws in Georgia. 

Typically, the deceased’s family will choose a person to become the estate administrator and handle the late person’s assets. The named personal representative needs to file an appropriate petition with the probate court to begin the process of being designated as administrator of the estate. 

Once the probate court approves the request, the petitioner will receive a court order (called Letters of Administration) appointing them to the role and specifying what powers have been granted to administer the estate.

The administrator’s next steps would be to determine which assets are part of the bequest—bank accounts, real estate, and any personal property of the deceased person (such as jewelry and other heirlooms)—and pay outstanding creditors and inheritance taxes, according to state laws. 

After satisfying all creditors, he can distribute any remaining assets to the heirs.

What Is a Codicil to a Last Will and Testament?

A codicil is an addition to your last will and testament. Codicils can alter, change, add to, or revoke part of the will as long as the changes are not too significant. They can be used to keep a will and testament current and up to date.

In order for a codicil to be considered valid in Georgia, specific criteria must be met. For example, the codicil must be signed by the testator and have at least two witnesses’ signatures. The witnesses should not be beneficiaries in the will or codicil. 

A codicil is typically used when you want to make a few small changes to your will rather than creating a new one from scratch.

There may be other requirements regarding a will codicil, and we recommend speaking to a probate attorney about your specific situation.

Do You Need An Attorney to Write a Will?

It is not required to have an attorney create a will, but it is strongly recommended. An attorney who creates wills or trusts is called an estate planning attorney.

Bottom Line

A last will and testament is a fundamental legal document in an individual’s estate plan. It lays out a person’s final wishes about their assets and provides specific instructions for distributing their possessions. When you create or update your will, you can protect your loved ones and give them an easy path to follow after you pass.

However, a will cannot accomplish certain things for a person, such as helping a family avoid probate or reducing estate taxes.

If you find yourself in the situation of dealing with the death of a loved one who left a last will and testament, but you don’t know what your next steps should be, feel free to reach out to our office at (770) 758-9733 and have a consultation with one of our team members.