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Basic Estate Planning in Georgia: Wills

Estate planning. The words alone frighten some people, while others may think it's just for the very wealthy. The truth is that estate planning is important and applicable to all people, particularly families with young children. While not all people need complicated tax-planning strategies due to a high level of assets, most people, including parents of minor children, still need a solid estate plan to ensure that they have appropriately provided for their child or children should something happen to one or both parents. This article discusses basic principles of estate planning as it relates to wills under Georgia law.

Why create a will?

While most people believe that having a will is necessary, I've often heard it said that most people die without a will. But if you don't have basic estate-planning documents, settling your estate may be much more complicated, expensive and time-consuming. If nothing else, it provides the opportunity for many more family disagreements, as surviving family members may get into disputes over the distribution of property and money. A basic will may help avoid many of those problems.

The will simply lists property that you own and how you want to distribute it upon your death. The property to be distributed under the will may include real estate, automobiles, jewelry, art, and other personal property, as well as money, stocks and bonds, etc. Certain property, such as real estate or financial accounts held jointly with another individual, or brokerage accounts and insurance policies that have a designated beneficiary, are typically not distributed through the will.

The will should also make arrangements for minor children if no other custodial parent survives, and it should designate a guardian to care for the children and a trustee to manage the children's property until they reach the age of majority. These are very important decisions that should be made carefully. Many parents choose to hold property for their minor children in a trust (that is a part of the will) until the children reach a certain age, or to release it in stages-such as one-third at 21, one-third at 25, and the final amount at 30-so that their children do not squander the assets they receive and only receive the assets at a time when they are mature enough to manage them.

Under Georgia law, any person 14 years of age or older with the capacity to make a will may do so. Capacity is generally defined as the ability to make rational decisions about the distribution of property. The testator (the person making the will) and two witnesses who are not beneficiaries of the will sign the will. It's also wise to have the testator and the two witnesses sign an affidavit before a Notary Public, attesting that they each signed the will, that the testator declared the will to be his or her will, and it was his or her intention that it be the will. This affidavit is then attached to the will and, when filed for probate upon the testator's death, will permit the will to be admitted to probate without the testimony of one of the witnesses.

Review your will periodically

It's important to review your will periodically to ensure that it continues to reflect your wishes, and that your situation has not changed in a way that renders the will void. For example, the birth or adoption of a child will render your will invalid unless the will expressly provides that it is to be valid in such a circumstance. Likewise, getting married invalidates the will, as does obliterating or destroying the will itself, such as attempting to make written changes to it or marking out a section. If your circumstances or the manner in which you want to distribute your property at your death change, the will may be amended easily though another written document, called a codicil, that is executed by the testator before two witnesses. Another affidavit would also be executed before a Notary Public as well.

As a final note, Georgia also has a unique law that provides for a year's support for a deceased person's spouse and minor children, whether the deceased had a will or not. Under this statute, a spouse and minor children may receive an award of property or money equal to a year's support. This distribution takes precedence over all other debts, except secured debts.

If you've put off your basic estate planning, do it now. Contact a competent attorney to discuss your situation, and get legal advice geared towards your specific situation.