Who Needs a Will?
By Ernie Lee ~ The Coastal Lawyer

I get many questions from clients asking me if they need a will.  My answer is always the same: “If you own property, then you need a will.” Additionally, I hear a lot of people say things such as, “If I sign my will and have three people witness it, it is valid, right?” or “If I make my own will and have it notarized, it is still good, right?”  I always have the same answer, “It depends.” This month I will explain the importance of having a legally valid will, as well as provide an explanation of what it means to probate a will, and, lastly, what constitutes a legally valid will.

Who Needs a Will?

Every adult should have a will. Whether or not you have few assets, many assets, minor children, no children, or specific desires about who gets your property, you should have a will.

There are many reasons to have a will. With a will, you decide how your property is distributed and thus you choose how your property is disposed. A will may help you to lessen estate taxes imposed at your death.  The best way to describe why one should have a will is to explain what happens if you do not have a will.

What Happens if You Die Without a Will?

In Georgia, if one dies without a will, state law determines who gets your property. This condition is called dying intestate, meaning, dying without a legally valid will.

Intestate succession laws define who your next of kin is are. If you are legally married, then your spouse will share your estate with your children.  However, the surviving spouse will take at least a third, regardless of the number of children.  If you are single with no children, then your estate will go to your parents.  If you are not legally married, have no children, and your parents are dead, then your estate will go to your siblings.  From there the state has a formula that extends out to your grandparents, aunts and uncles, then cousins, and so on.

This may or may not be a problem.  For many in the GLBT community this is an issue of family of origin versus family of choice.  The state does not recognize family of choice unless you have the proper documentation in place.  See past columns on power of attorney at http://firstcitynetwork.org/news.htm.

For those in the GLBT community it is important to realize that the State of Georgia, at this time, does not recognize same sex marriage from any other jurisdiction.  Therefore, if you have a domestic partner or were married in any other state or county, Georgia will not recognize your partner as your legal spouse and your estate will go by way of intestate succession laws. 

If you do not have a problem with the intestate succession laws, there are still cost factors to consider.  If you die intestate and you own any property such as a car, boat, home or condominium, and then your heirs have to petition the court to appoint an Administrator to transfer your property. The Court determines who acts as your Administrator.  In a legally valid will, you appoint the Executor. A legally valid will is easy to probate. The transfers can take place in a relatively short period.  If the court has to appoint an Administrator, the process is slowed and can take months or even longer to settle. Not only does a will give you control in determining where and to whom your property goes, but it also saves both time and money.  

Other reasons to have a will include:

Parents can name whom they want to be the guardian over their minor children.

Your will can direct that your assets pass to your beneficiaries by way of a trust instead of outright distribution to the beneficiary. Trusts may assist in protecting assets from the claims of creditors or unwise choices made by beneficiaries. While trusts are not for everyone, trusts can be a useful component in estate tax planning.

  · A will lets you grant your executor full power to sell your property and liquidate your assets without having to petition the court for permission.

· A will enables you to eliminate unnecessary expenses and court costs involved in the administration of an estate without a will. You can make gifts to charity through your will.

What are the Formal Requirements for a Will?

A will is the legal declaration of a person's intention for the disposition of his or her property after his or her death. The laws of each state set forth the formal requirements for a legal will. In Georgia the maker of the will (called the testator), must be at least 14 years old and be of sufficient mind and memory to realize you are making a will disposing of your property. Further, the will must be in writing and signed by the testator and witnessed by at least two witnesses in the special manner provided by law. These witnesses should not be persons who are designated to take property under the will. Finally, the execution of the will must obey certain technical formalities.

What Property Does a Will Control?

A will only controls the property passing through the testator's probate estate. A testator's probate estate consists of all property owned by the person upon his or her death that is not otherwise controlled by contract or operation of law. Probate assets include cars, personal property, real estate held individually and as tenants in common and bank accounts in the name of a single spouse.

Many types of property, however, pass to beneficiaries and others without regard to what the will provides. These assets may form a significant portion of the estate. The following are some examples of property that is not controlled by the will: (1) life insurance with beneficiary designations, (2) retirement accounts with beneficiary designations, (3) property owned as joint tenants with right of survivorship, (4) brokerage accounts for which the decedent has made a "payable on death" designation and (5) life estate interests.

May a Person Dispose of His or Her Property in Any Way He or She Wishes by a Will?

A testator, by his or her will, may make any disposition of his or her property not inconsistent with the laws or contrary to the policy of the state of Georgia. A testator may bequeath his or her entire estate to charities, strangers or in trust for beloved pets, to the exclusion of his or her spouse and children. In such cases, however, the disinherited spouse or children could seek to challenge the will if appropriate grounds exist for a competency or undue influence claim, or petition the court for a limited distribution to them regardless of what the will provides.

What is Probate?

Probate is the process of legally establishing the validity of a will before a judicial authority.  Another way to say this is, it is the act of proving that an instrument purporting to be a will was signed and executed in accord with legal requirements In Georgia, this authority is the County Probate Court.   The Probate court determines if a will is legally valid which means it meets the formal requirements under Georgia law.

Does a Will Increase Probate Expenses?

For the reasons discussed above, a will can lessen the costs of probate. Typically, court costs are limited to filing and publication fees. Court costs are usually less than $500. Court costs do not include compensation to the executor or amounts charged by attorneys or accountants for the estate. However, if the document is purported to be a will, is not valid, or has not been written, signed and notarized properly, then the court will have to apply the intestate succession laws and distribute the property accordingly. This can be extremely costly and time consuming.

How Much Does a Will Cost?

Lawyers usually charge either on an hourly basis or by setting a flat fee up front. In either event, the lawyer should be able to give you an estimate of likely charges before incurring significant expense, which should avoid unpleasant surprises down the road. Fees are based on either estimated or actual time spent by the lawyer and his staff. Usually, the process includes an initial meeting with the client, performing legal research, preparing recommendations as to the documents required, drafting the documents, making any desired revisions, witnessing, and executing the will.

The amount of time needed to complete the process depends on the complexity of each individual's personal situation. Generally, the more complex the will, the more expensive it will be.

How long is a Will Valid?

The mere passage of time has no effect on the validity of the will. Of course, tax and other laws and circumstances may change, which may render the will invalid or create unintended results. Wills should generally be reviewed every two to three years, and more frequently if you have a major life change, such as a marriage, divorce, the birth or adoption of a child or a substantial increase in assets.

Legally, a will does not take effect until the testator dies and the probate court approves the will. Prior to death, a competent testator may at any time change, amend or revoke an existing will. No notice to or approval of the beneficiaries is required. Change is usually accomplished by signing a new will or executing an amendment known as a "codicil." A codicil is a separate document that expresses the changes to the will and is executed with the same formalities as a will.

Who Should Prepare a Will?

Drafting a will involves making decisions requiring professional judgment, which can be obtained only by years of training, experience and study. Only a practicing lawyer can avoid the innumerable pitfalls and advise the course best suited for each situation. You should avoid using do-it-yourself kits or Internet templates, as they may create many problems.

Some Suggestions Concerning Wills

A will signed and witnessed by two individuals in another state will usually be valid in Georgia. However, if you have moved here from another state, it is wise to have your will reviewed by a Georgia lawyer in order to ensure that it is properly executed and valid according to Georgia laws.

Self-prepared wills are permitted provided they are properly executed and comply with Georgia laws. Many times, self-prepared wills contain ambiguous and confusing language causing many problems during the probate process. Thus, you can save your beneficiaries much grief and expense by consulting a lawyer to prepare and properly execute your will.

Changes in legislation and case law constantly modify the planning recommendations of a lawyer. You should review your estate planning, tax and incapacity planning opportunities with a lawyer whenever major life events occur and at least every two to three years.

Summary  

Wills are not only for the well-to-do. They also are important for all adults who are interested in ensuring that their wishes are respected upon death, and that their estates pass to their loved ones as quickly, as painlessly, and, as intact as possible. Wills are a component of successful estate planning, which seeks to transfer the individual's estate as he or she would have desired, avoid unnecessary costs and tears, and, minimize estate taxes.

This column was prepared with information from consumer information brochures published by the State Bar of Georgia. 

Ernie Lee © 2008 The Coastal Lawyer, LLC 

This article is for general information and is not intended to be legal advice.  The reading or use of this column does not create an attorney-client relationship between you and Ernest W. Lee II Attorney at Law or The Coastal Lawyer, LLC.   You should not act upon the information in this column without seeking advice from a lawyer licensed in your area.  The Coastal Lawyer ^SM is a service mark of the Coastal Lawyer, LLC and Ernest W. Lee II.  All rights reserved. Questions contact the author at (912) 231-2000 or info@ernielee.com.