What If I Die Without a Will in Georgia?

Making a will lets you decide which family members and loved ones receive your assets and belongings. When a person dies without a will, it is called dying intestate. In that situation, there is no valid will to determine how to divide their personal property and assets.

When a deceased person has died intestate, Georgia laws determine how to divide their assets and is among their closest relatives. If you have a spouse and children, they inherit from you. If you don’t have a spouse or child, the law leaves property to the parents, siblings, or other relatives.

Making a last will and testament allows you to control how to distribute your property instead of having it divided by state law.

What Does a Will Do?

A will is a crucial part of estate planning. It allows you to:

• Identify your personal property, assets, and real estate
• Designate beneficiaries who will receive the property
• Donate to charities if you wish
• Choose a personal representative or executor who is responsible for locating your property, submitting your will to the probate court, and carrying out your wishes
• Name a legal guardian for your minor children who will care for them after you are gone
• Set aside funds to care for your pets and choose someone to care for them after your death

Since you make these decisions in your will, a busy probate court doesn’t have to find your heirs, which saves time and money in the probate process.

What Doesn’t a Will Do?

Your will transfers personal property, real estate, cash, investments, and more, but some assets transfer outside of a will. These “non-probate” assets transfer automatically according to their own terms. These include:

• Life insurance payments (to beneficiaries other than to the estate itself)
• 401(k)s
• Keoughs
• IRAS
• Annuities
• Pensions
• Property owned as joint tenants with right of survivorship
• Trusts, including living trusts and assets owned by trusts
• Funds held in payable on death or transfer on death bank accounts

Additionally, it is important to understand that a will does not affect ownership of assets during your lifetime, nor does it impact medical or financial decisions made during your life. Other estate planning documents provide authority for those decisions.

Who Can Make a Will in Georgia?

Anyone of a certain age can make a will in Georgia if they have testamentary capacity. Testamentary capacity in Georgia means that the testator (the person making the will) rationally desires to distribute their property.

Age: You must be 14 years of age or older.

Testamentary Capacity: In Georgia, you must have a rational and decided desire to distribute your property, meaning that you:

• Understand that a will disposes of your property after death
• Know what property you own
• Remember your related family members
• Can express a plan for distribution

You must make these decisions freely and choose to make the will without undue influence or fraud. If you have concerns about your testamentary capacity, it is best to talk to an estate planning attorney for legal advice.

Does Georgia Have a Statutory Will?

No. Georgia does not have a statutory will (a form created by the state). You can create your own will customized to your needs or hire an estate planning attorney in your area, such as Atlanta or Marietta. Many choose to make a will using online resources such as FindLaw Legal Forms and Services that help you draft a Georgia will according to their laws.

What Types of Wills Does Georgia Accept?

Although you can make different types of wills, you should know which ones are accepted by Georgia.

• Handwritten Will: A handwritten will (also called a “holographic will”) is typically written entirely in your handwriting and not witnessed. Holographic wills of this kind are not valid in Georgia. However, if a will is handwritten and witnessed by two competent witnesses, the will is valid.
• Oral Will: An oral will is one that is spoken to others. Georgia does not recognize oral wills as valid, only written wills.
• Electronic Will: An electronic will is a will that is signed, witnessed, or notarized through electronic means. Georgia does not permit electronic wills at this time.

The only type of will valid in Georgia is a will that is in writing and signed by the testator in front of two witnesses. This rule ensures that the will is clear and that two people can verify the testator signed it and was of sound mind at the time.

Can I Make My Own Will in Georgia?

Yes. If you are 14 years old or older and have testamentary capacity, you can make your own will in Georgia. As long as you know what property you own and who you want to give it to, you are ready to make your will. There is no requirement to use an attorney to create your will. However, because a will is a legal document that goes through probate court, you want to ensure that your will is valid and enforceable. FindLaw Legal Forms and Services lets you easily create a will meeting Georgia requirements.

How Do I Make My Will Valid in Georgia?

A common FAQ about Georgia will is what you need to create a valid will in Georgia. Your will must be in writing and signed and witnessed according to the following rules:

• Signature: You sign the will or direct someone to sign for you in your presence.
• Witnesses: Two competent witnesses must be there at the same time and see you sign the will, or you confirm to them that the signature on the will belongs to you. A competent witness means they are 14 years of age and knows the difference between right and wrong, and is capable of testifying in court. The witnesses should also know that they are signing the will as witnesses for you. Avoid using interested witnesses. An interested witness is a witness who is also a beneficiary under the will or in the estate. An interested witness does not invalidate your will in Georgia but any gift from the will to the interested witness is void. So, it is wise only to use disinterested witnesses.
• Notary: There is no requirement to have a notary attest your will to make it valid. However, using an attestation clause or self-proving affidavit is a good practice, which requires a notary’s signature.
• Self-Proving Affidavit: In Georgia, you can create a self-proving will. This means that an affidavit is attached to the will signed by the testator and both witnesses and also by a notary who verifies identities and signatures. A self-proving will is admitted to probate without any of the witnesses having to testify. Without it, witnesses may need to appear in court during probate to state that they did witness it.

Can I Disinherit My Spouse in Georgia?

Most states have a law that prevents a spouse from being completely disinherited. They specify that the spouse can take an elective share, usually a third of the estate, even if they are not a beneficiary in the will. Georgia does not permit an elective share, so if you want to disinherit your spouse you can do so.

However, Georgia does allow a surviving spouse to receive a year of financial support from the deceased’s estate, with the amount determined by the court.

Can I Disinherit My Children in Georgia?

You can disinherit a child in Georgia, but a minor child has a right to seek one year of financial support from your estate after you die.

If you wish to disinherit an adult child, the best course of action is to clearly state that you are disinheriting them in your will and explain your reason. If you simply do not mention them, they may be able to contest the will, and the court may rule that they omitted as a mistake, not an intentional act.

What Estate Planning Documents Should I Have in Georgia?

In addition to creating your will, you should also make the following estate planning documents in the state of Georgia:

• A Power of Attorney. This document gives someone you choose the authority to make financial decisions on your behalf if you cannot.
• A Living Will. Some states have a separate healthcare power of attorney, which lets you name a health care agent who makes medical decisions for you when you are unable, and a living will or advance medical directive in which you state your wishes about end-of-life care, life-prolonging measures, and pain management. Georgia combines both of these documents into one living will document called the Georgia Advance Directive for Health Care.

Fortunately, making a valid will and creating other Georgia estate planning documents is easy with online estate planning templates.