Atlanta Probate Lawyer Blog
Georgia last will and testament statues clearly outline the requirements for the creation and execution of a valid will. When these strict requirements are not met, the will is considered invalid and the testator’s estate becomes subject to the Georgia laws of intestacy, just as if no will had been created or executed. In our Atlanta probate law firm, our lawyers often represent clients with probate issues that could have been avoided if proper will drafting and will execution practice had been strictly followed. The consequences of failing to properly execute a will can be devastating for those surviving the testator. This situation can also constitute malpractice for the drafting and executing attorneys or law firm. When a will is deemed invalid because of failure to execute the will with the proper formalities, Georgia intestacy laws dictate how the estate assets are distributed. These types of cookie-cutter arrangements bypass the true intent of the deceased and may lead to conflict among the surviving heirs.
The following are some of the steps to keep in mind when executing a will in Georgia. The person executing the will, the testator, must be at least 14 years old. The will must be in writing, although the law does not specify a particular format, except that it cannot be handwritten. The will needs to be signed by the testator, who must be sufficiently competent (of sound mind and memory) at the time the will is executed, know the nature and extent of their assets, and that they are executing a will voluntarily and of their free will. In Georgia, another person can assist the testator in signing the will. This is legally sufficient when it is done in the presence of the testator and at the express direction of the testator. A minimum of two witnesses must also sign the will in the presence of the testator. The witnesses must view the signing of the will by the testator as defined by the “line of sight” rule. This means the witnesses must have an open and unobstructed line of sight to the testator’s signing of the will.
Should a witness also be beneficiary under the will, he or she must forfeit their inheritance under the will for their act as a witness to be valid, and as a result, the will to be valid. Thus, witnesses whom are beneficiaries to a will should not be a witness to the will. As a last resort, however, the testator may have three or more witnesses to their will. Under Georgia Code Section 53-4-23, a witness who is also a beneficiary may receive testamentary gift from the estate only when a minimum of two other witnesses sign the will. In this case, the other two witnesses cannot be beneficiaries. A useful and increasing necessary document to attach to the will is a self-proving affidavit. While it is not a requirement, this document proves that the will was properly executed and is genuine. It should be signed by the testator, the witnesses and certified by a notary public. Without a self-proving affidavit, one of the witnesses must be located at the time of the testator’s death and sign a legal document called “Interrogatories to Witness to Will. In this legal document, the witness attests to the validity of the will he or she witnessed. Further, the witness may be required to appear in court and give testimony under oath. With the self-proving notarized affidavit, this is not necessary and the will is likely admitted to probate without any delay.
To ensure that the assets in your estate are distributed according to your wishes or in the event of any probate disputes, our Georgia estate dispute attorneys at The Libby Law Firm, LLC are available to assist you. Our lawyers are experienced in estate planning as well as probate litigation and can help you with any concerns you may have over the final disposition of assets in an estate. Contact us to speak to an experienced Georgia estate litigation lawyer at (404) 467-8611. Our Firm’s Main Office is conveniently located in the Buckhead section of Atlanta, Georgia near the intersection of Piedmont and Roswell Roads.
You can also meet with one of our Georgia estate litigation attorneys at our Law Firm’s Marietta, Georgia Office. You can contact our Marietta, Georgia location by calling (770) 952-1008.
Lastly, you can contact our Main Buckhead-Atlanta Office or our Marietta, Georgia Office by sending a message through our confidential Contact Us form located on our web site.