Over the last 9 ½ years, I have seen several mistakes in executing Last Will and Testaments. It is important that your Last Will and Testament is executed in accordance with the laws in the State in which you are domiciled or in which the Last Will and Testament will be probated. In Georgia, the requirements for Will execution include the following:
- The person executing the Will, the testator, must be at least 14 years old.
- The Will must be in writing, although the law does not specify a particular format, except that it cannot be handwritten.
- The Will needs to be signed by the testator, who must be sufficiently competent (of sound mind and memory) at the time the Will is executed, know the nature and extent of their assets, and that they are executing a will voluntarily and of their free will.
- A minimum of two witnesses must also sign the Will in the presence of the testator. The witnesses must view the signing of the Will by the testator as defined by the “line of sight” rule. This means the witnesses must have an open and unobstructed line of sight to the testator’s signing of the Will.
Of the problems I have seen, one of the most difficult for the family is when the Last Will and Testament is not witnessed properly, i.e., only witnessed by one witness or not at all. In this instance, the Will is not valid.
Another consideration is that the witnesses should not be beneficiaries under the Will. If the witness is a beneficiary under the Will, he or she will forfeit their inheritance. The other option is that the beneficiary’s signature is not counted as a witness and unless there are 2 other witnesses, the Will is not valid. As a result, Beneficiaries under a Will should not be witnesses to the Will.
A few years ago, a couple who has 2 grown children came to me and asked me to review the Wills they had created from an online site. Their intent was to leave everything to the surviving spouse and then equally to the children after the survivor’s death. In reviewing the Wills, the Wills met the legal requirements to be valid Wills in Georgia; however, the witnesses of the Wills were the spouse and one of the children. The result was that the spouse and the child who witnessed the Will would forfeit their inheritance.
The last consideration is whether the Will is “Self-Proving”, meaning that the Witnesses to the Will do not need to provide testimony regarding the execution of the Will. O.C.G.A. § 53-4-24, provides that the affidavit of the testator and the attesting witnesses made before a notary public as prescribed in the code section is the prerequisite for a self-proved will.
We work with individuals and families to develop plans Estate Plans and to ensure they are properly executed and valid under Georgia law. For more detailed information and to discuss your specific case, call us today at (678)781-9230 to schedule an appointment.
This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. By using this blog site you understand that there is no attorney client relationship between you and Grissom Law, LLC.