Georgia’s laws regarding wills are unique in a couple of ways. It’s the only state that allows you to disinherit your spouse because it recognizes neither community property nor elective share laws. Most states require that you must legally be an adult before you can make a will, but not Georgia -- you can do it at age 14 here as long as you’re of sound mind. But a number of Georgia’s other rules are similar to those in other states.
Identify Your Probate Property
You can only bequeath certain property -- your probate property -- in your will, so your first order of business might be to determine exactly what probate property you have to give away. These are assets that you own in your sole name that don't transfer to a beneficiary by contract or by operation of law. They require the probate process to be moved out of your name and into the name of a beneficiary. For example, life insurance policies and retirement benefits would go to the beneficiaries you've named on these assets so they're not probate property. Real estate you hold with someone else as joint tenants with rights of survivorship would transfer to that individual according to the deed and would not require probate. Payable-on-death accounts go to the person you've named as beneficiary by contract, so they're not part of your probate estate either. If you include these non-probate assets in your will, it can complicate probate proceedings because your will can’t override beneficiary designations made by contract or deed.
Read More: Does Property Have to Go Through Probate Court?
Allow for a Family Allowance
Although Georgia technically allows you to disinherit your spouse -- you don’t have to provide for her in your will and she’s not entitled to half of your marital property as she would be in community property states -- this doesn’t mean she gets nothing. Under most circumstances, she and your minor children, if any, are entitled to a year’s support from your estate. She must petition the court for this allowance, and the amount she receives is up to the judge based on various factors. The money or property comes off the top of your estate, so this could affect your other bequests if you don’t allow for it in your will. Speak with a local attorney to get a general idea of how much your spouse might receive based on your personal circumstances.
Name an Executor
You can also use your will to tell the court who you want to oversee probate of your estate. This is your executor and he’ll be in charge of settling your estate under the supervision of the court, ensuring that your debts are paid and your property passes to the beneficiaries you’ve named. You can also name someone as guardian to raise your minor children in the event that you and your spouse die in a common event, and someone to manage their inheritances for them until they come of age. If you don’t choose these people, the court selects them for you.
Commit Your Will to Writing
When you’ve decided on all the terms of your will, you must commit it to writing. In Georgia, this means typing the document or printing it out from your computer. You can buy form wills or software programs and simply fill in the banks, but this is risky because they tend to be one-size-fits-all and may not adequately address your personal concerns. Generic forms may not meet legal requirements unique to Georgia. The state doesn’t recognize handwritten wills, and it accepts oral wills only under limited circumstances. You must literally be on your deathbed and express your wishes to two people who understand that you want the terms to constitute your will. Your witnesses must then put your wishes in writing and submit the document to the court.
Meet Witness Requirements
Your will isn’t valid until it’s signed and witnessed. Georgia law requires that at least two competent individuals watch you sign the document, and then sign it themselves. If you choose someone to whom you’re leaving property, you’ll still need two more witnesses, in addition to this person. You might also elect to include a self-proving affidavit with your will -- a document signed by you and your witnesses, stating that they watched you sign it so they don't have to appear in court after your death to testify to this. Georgia has a statutory form for this; you can pick one up at your local courthouse or find one online. It's safe to use this form because it's approved and provided by the state.
Consider Attorney Review
Making a will is a bit more complicated than it might appear on the surface. You may think you have a firm understanding of what you should include, but you could easily make a mistake. Consider talking to an attorney before you start so you’re sure how local law applies to your personal circumstances. You can also take the finished document to a lawyer for review to ensure that it says what you think it says.
- State Bar of Georgia: Wills
- GeorgiaGov: Creating a Last Will and Testament
- FindLaw: Georgia Wills Laws
- Louisiana Law Review: Community Property vs. Elective Share (PDF)
- Georgia Year’s Support Law: Georgia Code Title 53, Chapter 3 -- Year’s Support
- Living Trust Network: Georgia's Requirements for a Will
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.