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Creating a Last Will and Testament

Contemplating one’s death can be uncomfortable, but it is crucial to have the conversation and create an estate plan to ensure loved ones are provided for in the event of an accident or untimely death. Those who fail to create a will or establish a living trust no longer get to choose who inherits their assets, instead their assets will be distributed according to the state’s laws of intestacy, which may not align with the decedent’s wishes. Drafting a will is the best way to avoid an undesirable outcome; so if you are considering planning your estate, please contact a member of our wills and trusts legal team to get started.

Basic Requirements  

Wills are only valid when they comply with a set of specific rules, including the following:

  • The will is in writing;
  • The testator was at least 14 years old at the time the will was drafted (per GA rule, each state has its own requirements);
  • The testator had the mental capacity at the time of signing to determine how his or her assets should be distributed;
  • The will was signed by the testator or by another person under his or her direction; and
  • The document was witnessed and signed by two competent witnesses who were at least 14 years old.

Each state provides its own will signing requirements.  It is critical to understand these requirements or work with someone who does so as not to undermine the intended outcome of your estate plan.  For example, if a witness is also a beneficiary under a will, he or she will be unable to receive the bequest unless the signing is witnessed by at least two other disinterested parties.

Probate Process 

Before a decedent’s beneficiaries can receive their inheritance under the will, the will must be proven in Probate Court. The Executor (also called a Personal Representative) named in the will must petition the Probate Court to be formally appointed as the estate’s Personal Representative.  After being appointed, the Personal Representative may begin the process of distributing the decedent’s the assets. Although the probate process in Georgia is relatively easy compared to other states, a poorly drafted will can cause confusion and delays in the probate process.  If a family member contests the will, it will also slow down the probate process and the administration of the estate.  In certain circumstances, it may be a good idea to draft a will to prevent such challenges by family members.

Amending a Will  

If a testator encounters a major life change such as divorce, remarriage new state residency, or the birth of a child, or simply changes his or her mind about the terms of a will, the testator can easily amend the will either by creating a new will or drafting a codicil. Most people choose to create a codicil, which acts as an addition or amendment to the will and allows the testator to change a few provisions without having to throw out the entire will.

Intestacy  

When a person passes away without a will, his or her assets will automatically be distributed according to the state’s intestacy laws. This means that if a decedent is survived by a spouse and had no children, the spouse will automatically receive all of the deceased’s property. However, if a decedent did have children, each party (including a surviving spouse) will take an equal share of the assets, although a spouse’s share can never be less than 1/3 of an estate. When a decedent a surviving spouse or children, the entire estate will typically go to surviving parents first, then siblings, then nieces and nephews, aunts or uncles, so on.

Contact an Experienced Atlanta Wills and Trusts Attorney  

If you are thinking about planning your estate, please contact one of the dedicated attorneys at MendenFreiman LLP by calling 770-379-1450 today. A member of our legal team is standing by and eager to help you.

Resource:

southernjudicialcircuit.com/selfhelp/miscforms/CodiciL.pdf

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