Laws governing last wills and testaments vary from state to state. Georgia offers two ways of entering a will into probate: via a solemn form or common form. There are fewer requirements if your executor chooses the common form probate, and it still allows her time to oversee the details of all that you want done with your estate and to pay any financial claims against it.
Creation of Will
You must be at least 14 years old to make a will, according to the State Bar of Georgia. It must be in writing and bear your signature attested to by witnesses. Under Georgia Code Section 53-4-1, you may give your property to anyone you wish so long as it is not against the laws of the state. You do not have to have an unblemished criminal record, and you do not have to be sane and free of mental illness at all times, just during the time period when you’re making the will. You don’t even have to be able to sign your name -- just making your mark is all that is required.
Two witnesses are required, and they must sign your will in your presence. They, too, must be older than 14 and can make a mark rather than leave a complete signature, under Georgia Code Section 53-4-20. If one of your witnesses is also a beneficiary, however, you will be required to have three witnesses, one more in addition to the one who stands to inherit.
A solemn form probate requires your executor to give notice of all proceedings to your legal heirs, whether or not you named them as beneficiaries. This means anyone who would inherit a portion of your estate by law if you left no will, such as your spouse. If any heir wants to object to the will, he must do so within a prescribed period of time, according to the Judicial Branch of Georgia. If your executor chooses to proceed by common form probate, she is not required to give notice to your heirs, but they can contest your will up to four years after the will enters probate.
Exceptions to Probate
If you have no property to pass on at the time of your death, then Georgia does not require your will to enter probate. This might happen if you suffer losses between the time you made your will and the time you die, if you voluntarily sell off assets prior to your death of if the provisions of your will don't include assets. However, your will must still be filed with the probate court.
Just because you name an executor in your will, that person does not have to serve in the capacity if she does not want to or is unable to. However, she is required to sign a declination of the position. If she is incapacitated or has predeceased you, then someone else can give testimony to the court to that effect. The Judicial Branch of Georgia indicates that if this happens, the beneficiaries may elect a replacement executor.
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.