A Last Will and Testament, or simply a will, is a legal document that outlines your wishes and the disposition of your property upon your death. Without a valid will, Georgia law determines how your property and assets are distributed. Read below for a discussion of the elements to creating a valid will in Georgia.
What are the Legal Requirements for a Georgia Valid Will?
The person making the will must be at least 14 years of age
Georgia law requires the testator, the individual making the will, to be at least 14 years of age or older in order to create a valid Last Will and Testament. There is an exception to this requirement, however; Georgia law states that if you are "laboring under some legal disability arising either from a want of capacity or a want of perfect liberty of action," then you are unable to create a valid will.
The person making the will is competent
A testator must have testamentary capacity, meaning the testator has a "decided and rational desire" to dispose of his or her property (O.C.G.A. § 53-4-11(a)). This means it is your choice to create a will to dispose of your property.
The person making the will has the freedom of choice to create a will
A testator must also have the freedom of choice to create a will, meaning he or she is not being forced to create a will through undue influence, misrepresentation, or duress.
The person making the will must understand the contents of the will
When a testator creates a will, the testator must know what his or her will contains and how the testator's property is disposed of.
The will must be written
Your will must be written, as required by Georgia law. "Written" means handwritten or typed. For example, a video you create that disposes of your property is not considered "written." But a will typed on a computer is considered "written."
The will must be signed
A will must always be signed by the testator in order for the will to be valid. The signature may be a mark or your name. Georgia law allows another person to sign your name to the will if you are unable to do so, but this must be done in your presence and at your "express direction" (O.C.G.A. § 53-4-20(a)).
The will must be witnessed
Georgia law requires a testator's will to be signed in the presence of two competent witnesses. The witnesses will "attest" and "subscribe" that the will is declared by the testator to be a will and that the testator signed the will. The witnesses will attest and subscribe by signing their names to the will.
A common misconception is that if a testator writes his or her will by hand and is signed by the testator, the document is a valid will. This document is called a holographic will and is not valid in Georgia. Even if a testator decides to handwrite his or her will, the will must still be witnessed.
A will does not have to be notarized to be a valid will. However, having your will notarized is a good idea since it will make the probate of your will much simpler and quicker.
What is the Danger of an Invalid Will?
A will is considered invalid if all of the requirements for a valid will are not met. What this means is that your will cannot be probated and your wishes not followed once you pass away. Instead, the disposition of your property will be determined by the intestacy laws of Georgia.
Contact McRee Law, LLC for Help Drafting a Will
If you are concerned that your will does not meet Georgia legal requirements for a valid will, or you would like to discuss creating a will, please call us at (706) 335-4946, reach out via email (hayden@mcreelawllc.com), or contact us through the online contact form.