Learning more about Wills
Who Needs a Will
Whether you are married, single, have minor children or own even a nominal amount of personal assets or property, you should have a will. In fact, every eligible adult should have a will or other means to control the disposition of his or her assets. Even people who have living trusts should consider preparing a will because, without a will, any property not named in the living trust will pass according to Georgia law, not necessarily in accordance with a person's wishes. In Georgia, if you are competent and age 14 or older, you can have a will.
Every state has its own will requirements. If you die, while a resident of Georgia, Georgia's requirements will be used to interpret the validity of the will and to determine the probate procedures. Thus, if you write your will in another state and move to Georgia, you should have your will examined to make sure it is valid. There may be requirements in some states which are not applicable in Georgia and wills from these states are not written to take the benefit of Georgia's fairly simple probate procedures.
If a will does not satisfy basic procedural requirements, it may be rejected by the Probate Court and the property of the deceased person will be given to certain heirs as determined by a Georgia law, not by the wishes of the decedent. Certain family members or friends may have a rude awakening upon visiting the lawyer's office. A will helps avoid that issue and also allows a person to give specific property such as family heirlooms, to particular people and to make provisions for charities.
If you have minor children, your greatest concern may not be who gets your assets, but rather, who will take care of your children. The courts are given broad discretion to determine who will take care of minor children if both parents die or if the surviving parent is unavailable. Even though the court has the ultimate authority to appoint a guardian, a will is the only way to tell the court who you want to raise your children.
Further, a will can set forth what assets your children will receive, how the assets will be distributed, and who will manage the assets until such time as your children are able to manage the assets themselves. Fortunately, a will affords you many options to control the disposition of assets to your children if you should meet with an untimely death. Through a will, you can leave instructions on how the property will be held and who will act as the guardian, trustee or custodian of that property. By establishing a trust for your children in your will, you can even condition when and how they will receive benefits.
There are a number of different proceedings which may be filed in the Probate court following the death of a Georgia resident or a non-resident owning property in the State of Georgia. Proceedings are filed in the Probate Court of the county of the decedent's residence in Georgia or in the county where property of a non-resident is located. For each proceeding described, there is a standard form, which the Court will provide to any petitioner.
We strongly suggest that you discuss your issues with an attorney. We can assist you in determining which proceeding is the most appropriate for your particular situation.
PROCEDURES AVAILABLE FOR DECEDENTS' ESTATES WHEN THERE IS A WILL
SOLEMN FORM PROBATE This procedure requires notice to all heirs and becomes binding upon all parties immediately upon entry of the final order. "Heirs" are those persons who would inherit the estate if there were no lawful Will; heirs may or may not be beneficiaries under the Will. The notice requires anyone having a legal cause to object to or contest the alleged Will to file the objection or contest before a certain deadline. The original Will must be filed with the petition, and proof of the proper execution of the will must be provided by either a self-proving affidavit, Interrogatories or Proof of Witness. All heirs must be duly served or must acknowledge service. The Court will appoint a guardian-ad-litem for each minor or incapacitated heir.
COMMON FORM PROBATE This procedure may be done without notice to heirs but does not become binding for four years after the appointment of the Executor. The requirements of providing the original Will and proof of proper execution are the same as with the Solemn Form Probate. Heirs and others may file an objection or contest at any time up to four years after common form probate.
PROBATE OF WILL IN SOLEMN FORM/ LETTERS OF ADMINISTRATION WITH WILL ANNEXED If there is a Will but the named Executor is either unable or unwilling to serve, an Administrator C.T.A (with Will annexed) must be appointed. Any nominated Executor still living must sign a declination, or there must be testimony that the Executor is unable to serve. A majority of the beneficiaries may select the Administrator C.T.A. The Court will appoint a guardian-ad-litem for each minor or incapacitated heir.
WILL FILED NOT FOR PROBATE If there is no property to pass under the Will, probate is not necessary. However, the Will of the decedent must be filed with the Probate Court. Real estate, unlike joint bank accounts, may not automatically pass to a surviving co-owner. If the only property in the estate is an automobile, title may be transferable through the Tag Agent without probate being necessary. There is no cost to file a Will not for probate.
WHEN THERE IS NO WILL
PERMANENT ADMINISTRATION This procedure requires notice to all heirs. A surviving spouse or sole heir is entitled to serve as Administrator, unless disqualified; otherwise, the person selected by a majority of the heirs is entitled to serve, unless disqualified. Administrators must post bond and file inventories and returns, unless ALL heirs consent to a waiver of those requirements. If ALL heirs consent, the Administrator may be given additional powers and authority. Guardians of minor or incapacitated adult heirs may acknowledge service, consent to selection and consent to waive requirements, provided the guardian is not the petitioner.
TEMPORARY ADMINISTRATION Notice to the heirs is not required, but a majority of the heirs may select the Temporary Administrator. Powers are limited to collecting and preserving the assets of the decedent, and the Court may appoint a Temporary Administrator upon any showing of necessity or appropriateness. No expenditures or disbursements may be made without a special court order. Temporary Administrators must post bond and file inventories and returns. Guardians of minor or incapacitated adult heirs may consent to selection, provided the guardian is not the petitioner.
NO ADMINISTRATION NECESSARY If all debts of the decedent have been paid (or if all creditors consent or fail to object after notice), if there is no other need for formal administra¬tion, and if the heirs have all agreed on how the estate will be divided, this proceeding may be filed. All heirs must sign an agreement disposing of the entire estate; guardians of minor or incapacitated adult heirs may execute the agreement. Creditors who have not consented in writing must be given legal notice of the filing.
WHETHER OR NOT THERE IS A WILL
YEAR’S SUPPORT This proceeding may be filed only by a surviving spouse or for minor children of the decedent. The petition asks that specified property be awarded to the spouse and/or children. Notice must be given to all "interested persons." Property awarded as year's support is free of all unsecured debts of the estate and takes precedence over any disposition by Will. The lien of certain ad valorem taxes on real estate is divested by the award of the property as year’s support
PETITION TO ENTER SAFE DEPOSIT BOX This proceeding is usually filed when the Will is thought to be in a safe deposit box. It permits the bank to open and examine the contents of the box in the presence of the petitioner. If a Will is found, the bank must deliver it directly to the Probate Court. Insurance policies may be delivered directly to the named beneficiaries. The petitioner may receive only burial instructions and any deed to a burial plot. Other property must remain in the box until an Executor or Administrator is appointed.
Living Wills, Powers of Attorney and other Estate Planning Tools
Estate planning is not just about wills. Preparing powers of attorney to cover business matters, and health care issues is also very important. Repositioning ownership interests in land, bank accounts or stock can also be useful. Making sure beneficiary designations in life insurance policies, IRAs, pensions and similar investments are consistent with a will may make or break your estate plan. Living Wills help guide families when you cannot express your opinions and may ease the anxiety of your family.