What should I know about making a will?
Authored By: GeorgiaLegalAid.org
Making a will in Georgia
What should I know? +
- What is a will?
- Why do I need a will?
- What happens to my property if I die without a will?
- What can I do in my will?
A will is a legal document that lays out how you would like your property to be divided up when you die. You can decide who gets both your real property (house) and personal property (everything else). The person who makes a will is called the “testator.”
When you make a will, you will also select a person to carry out your wishes for you after you die. This person is called the "executor."
If you want to have a say in how your property is distributed when you die, you need a will.
Your will is also your chance to name a personal guardian to care for your minor children.
As long as you have relatives who can be found, your property will be distributed according to Georgia's intestacy law. If you have a spouse and/or children, the estate will go to them. Your spouse will get ⅓ of the estate and the children will split the rest. If a child is deceased, their children will divide that portion. If you have no spouse or children, your estate will go to relatives in this order:
Father and mother share equally with brothers and sisters
Brothers and sisters (half brothers and sisters share equally whole-blood
Aunts and uncles
Closest other relatives
If you have no living relatives by blood or marriage, your property will go to the state.
A will allows you to leave your property to any person or organization you want.
A will is legal even if it completely leaves out your spouse and children. However, in some cases, a spouse or a minor child may ask the court for a portion of your estate to support them for twelve months.
It is legal to leave something to a person only for their lifetime. This is called a life estate. You may say that you want the property to be passed on to someone else after that person dies.
You can also:
Name a guardian for your minor child,
Name a person to care for your child’s property, and
Name the executor of your estate.
What can I do? +
- How can I make sure my will is valid in Georgia?
- How can I republish (affirm the contents) of a will?
- How can I make changes to my will?
- How do I revoke or cancel a will?
There is no particular format that makes a will legal in Georgia. But, a will must be in writing and signed by:
You in front of two witnesses. If you are unable to write your name you can:
Make a mark, such as an X, to show you are signing, or
Give someone else permission to sign for you.
The two witnesses in front of you.
Both you and the witnesses must be:
At least 14 years old and
Of sound mind. Sound mind means that you have the mental capacity to understand what you are doing.
If you cannot read the will, you should have someone read it for you in front of your witnesses.
Your will does not need to be notarized to be legal. But, in order to make probate easier, you can add a “self-proving” document. The self-proving document lets the probate court accept the will without contacting the witnesses who signed the will.
To make a self-proving will, both you and your witnesses must sign an affidavit in front of a notary that:
Proves your identity, and
Shows that you each knew what you were signing.
Georgia Law provides that a testator (the person making the will) may reaffirm the contents of a will at any time by re-signing the will in front of new witnesses.
This is often a good option where a will was executed without a self-proving affidavit. A self-proving affidavit will make it easier during the probate of a will because there will be no need to find the witnesses later and have them sign an affidavit. This should speed the process of verifying your will.
If you have a previous will and do not want to make any changes to the body of the will you can republish your will by signing it again in front of new witnesses. You may do this by making a new signature line for yourself and your two new witnesses. Then you should fill out the enclosed self-proving affidavit and you and your witnesses must sign in front of a notary public. It is best that this be done at the same time that you all sign the will. You, your witnesses and the notary must all sign in the presence of each other.
It is very important that you do not make any changes to the body of the will itself. Even a stray mark could cause problems later.
If you want to make minor changes to your will, you can do that through a codicil. A codicil adds or takes something out of your current will. A codicil is only legal if it is:
In writing, and
Signed by you and two witnesses.
If you decide you want to make a new will, you will need to revoke your current will. To revoke a will, all you can either:
State in writing that you are revoking the current will. This is the surest way to make your intentions clear.
Tear up, throw out, or cross out items in the current will.
Write a new will that is not consistent with the old will.
Parts of your will could be automatically revoked if:
Your child is born within 10 months of your death,
You adopt a child,
You get divorced,
You get married.
You can avoid this if you write in your will that these events should not revoke your will.
- Read “Do I need a will?” from the Georgia Department of Human Services (this links to a PDF that may not be fully accessible).
- Find Georgia Probate Court Standard Forms on the Supreme Court of Georgia website.
- For help in Fulton, Clayton, Cobb, Gwinnett, or DeKalb County, contact Atlanta Legal Aid. Fill out the Atlanta Legal Aid online intake application or call 404-524-5811 (main line), 404-657-9915 (GA Senior Legal Hotline), to see if you qualify for legal assistance.
- If you live in any other Georgia county, contact the Georgia Legal Services Program for help. Access the GLSP online intake application or call 1-833-457-7529 to see if you qualify for legal assistance.