| | A Will is the document you use to dispose of your property after you die. A Will can be changed and is revocable during one's lifetime. E.g., "I leave my whole kit and kaboodle to my wife." (A "short" will written by another attorney at the client's request - if you're wondering, this would NOT be our recommendation).
To make a will, you have to be old enough (at least 18 years old in most States). You have to be of sound mind. Sound mind means that you know what you are doing and have decided things for yourself. Your will should be signed in front of two witnesses and a notary.
WHAT MUST BE INCLUDED IN A WILL?
Except in limited cases, Wills must be in writing.
The Will must be signed by the Will maker.
The Will maker must be at least 14 years old, competent, meaning, the Will maker understands that she is making a Will, and that it disposes of her property at death.
The Will must be executed in front of 2 witnesses, at least 14 years old, who must personally sign as witness; it is best if the witnesses are not heirs under the Will.
It is best if the Will is self-proving (notarized).
All witnesses must observe each other and Will maker signing.
Any Codicils (Will Amendments) must be executed with the same formalities.
OPTIONAL, BUT HELPFUL WILL PROVISIONS
A well drawn Will often provides for payment of legal debts, makes charitable gifts, makes special gifts to specific beneficiaries, selects an Executor and backup executor, selects a guardian for minor children, eliminates probate expenses such as executor’s bond, and provides for gifts in lieu of year’s support. If there is ANY potential that disabled or elderly loved ones might inherit your estate, or a portion of your estate, then you may need a special needs trust (SNT) in your will. An SNT would prevent them from losing public benefits, such as SSI and Medicaid. As a practical matter, you should always consult a lawyer who has a current understanding of public benefits when considering how to transfer (by Will or otherwise) any cash or property to someone on SSI or Medicaid.
I HAVE A TRUST. DO I STILL NEED A WILL?
Everyone needs a Will. Even if you have a Trust, you still need a Will to avoid partial intestacy (Dying without a Will). If you put your assets in a Trust, you should execute a Pour-Over Will, which transfers any left-over assets into the Trust (e.g., you can not transfer a wrongful death claim into a Living Trust). Therefore, if you are using a trust as your estate plan and die without a Will, any assets that remain outside the trust will pass to persons that the State designates as your heirs.
WHAT HAPPENS IF I DIE WITHOUT A WILL?
If you die without a Will, your heirs do not have any of the advantages that come with planning. However, no one dies without heirs. If you do not pick them, the State will. And if you don’t give away all of your estate, then the State will treat the part you don't give away as though you died without a Will. Georgia and Tennessee intestacy rules are virtually identical. See O.C.G.A. Section 53-2-1 (Click here for the text of the Georgia rule) and T.C.A. Section 31-2-104
Generally speaking, the Intestacy ("No Will") Rules are as follows:
- If you have a spouse, but no children, then your spouse inherits 100% of your Estate.
- If you have a spouse and children, then your spouse and children share equally, provided your spouse gets at least one-third.
- If you die with no spouse, then your descendents are your heirs per stirpes (Latin for by the root, meaning each child's family gets an equal share).
- If you have no spouse and no descendents, then your parents are your heirs.
- If your parents are dead, then your siblings (per stirpes) are your heirs.
- If your siblings are dead, and there are no nieces or nephews, then your grandparents are your heirs.
- After that, aunts and uncles (and so on down the line).
- Eventually, if you have no other heirs, the State is your heir.
Why should I make a will?
You may need a will IF:
- You want to leave certain things to certain people.
- You want all or part of your things to go to a friend or charity.
- You want one person to get more or less than the others.
- You want to make sure one person gets nothing.
- You have no close family (parents,children,husband,wife,brothers or sisters).
- You want one distant relative get everything.
- You own land,buildings,a business or have anything worth a lot of money.
- And you need to save on taxes.
Do you have children under age 18? Do you want to pick who will be their guardian
if you die?You do NOT need a will to do that.You can just write a letter saying who
you want for their guardian.
What if I don't make a will?
The State has a law which really is a one-size-fits-all will.Here is how it works:
- Usually, your things are divided among your husband or wife and your children.
- If you have no children, your husband or wife gets everything.
- What if your husband or wife dies before you? Then your children or grandchildren get everything. All children get the same share.
- What if you have no husband or wife and no children? Then your parents get
your things.
- What if your parents also have died before you? Then your brothers and sisters,
or their children, get your things.
- What if you die with no husband, wife, children, parents, brothers or sisters? Then
other relatives get your things.
- The State will only get your things if you have no relatives who can get them.
In Georgia, a spouse or minor child may be entitled to a protected share of the Estate called a year's support. This is particularly helpful where the Estate is small and creditor claims would otherwise consume the Estate. If you believe this procedure would benefit you, you sohuld contact a lawyer to assist you in filing the petition.
Click here for information about the "Probate" process
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© 2004, Law Office of David L. McGuffey, LLC
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