In order for a Will, also known as a Will & Testament, to be valid in the state of Georgia the testator must be fourteen (14) years or older and competent to create a Will, the Will must be in writing, signed by the testator, and signed by two witnesses.
Let us break down these five requirements further… shall we?
(1) The testator must be fourteen years or older.
The first requirement is pretty straight forward – the testator, aka the person creating the Will, needs to be at least 14 years or older (O.C.G.A. § 53-4-10). For many states, the legal age limit is 18, but Georgia allows individuals to create a valid Will at the age of 14.
(2)The testator must be competent to create a Will.
In Georgia, the testator must have something called “testamentary capacity,” which is a fancy legal term meaning the testator is able to rationally decide as to the disposition of his or her property (O.C.G.A. § 53-4-11) and the testator must be freely and voluntarily making those decisions (O.C.G.A. § 53-4-12).
The testator must have the mental ability to fully realize the consequences of what he or she is doing when making the Will and must understand the decisions that are being made. If the testator’s mental capacity is at question at the time of creating and signing the Will, then this may be grounds to contest the Will.
The testator must execute his or her Will freely and voluntarily. He or she may not be influenced or under any type of duress by outside parties in creating the Will (O.C.G.A. § 53-4-12).
(3) The Will must be in writing.
The Will must be in writing – either typed or handwritten is sufficient, however I would suggest the Will to be typed if possible to make it more legible. Oral wills, or wills recorded by audio or video, are not valid in Georgia.
(4) The testator must sign the Will.
Georgia law requires the testator to sign his or her Will in order for it to be valid (O.C.G.A. § 53-4-20). The signature should appear at the end of the document with his or her name, by official mark or sign that is meant to authenticate the document. If a person is physically unable to sign the Will, then another individual may sign on behalf of the testator in the testator’s presence and at the express direction of the testator.
(5)The Will must be signed by two witnesses.
This last requirement is where people tend to make the most common mistakes. The Will & Testament must be signed by two competent witnesses who have personally witnessed the testator signing the document for it to be valid. The witnesses should be disinterested parties, meaning he or she is not a beneficiary of the Will and does not receive any portion of the estate or property.
WHAT HAPPENS IF THE WILL IS DETERMINED TO BE INVALID?
One of the most common disputes that arise when contesting a Will is that the Will is not valid. Wills can be shown to be invalid for several reasons such as improper witnessing, missing pages, the testator lacked testamentary capacity at the time of executing the will, or hand-written changes to will (any changes must be properly witnessed in the same way). If the court deems the Will to be invalid, then the testator’s property will be distributed according to the Georgia laws of intestate succession.
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If you are considering creating a Will & Testament, simply updating a current Will & Testament, or have any questions regarding the estate planning process, feel free to give us a call at 770-826-4283 or e-mail at firstname.lastname@example.org to schedule your consultation.