What is a Will?
A will is a legal document that is written by you (the testator or will-maker) that dictates how your property and assets will be distributed upon your death. A will also directs any estate taxes that you may owe, appoints a person to administer your estate based on your requests or state law (executor/executrix), and appoints a guardian for minor children among other things. If you have any assets, you should create a will to ensure that those assets go to the people you intend to have them. This is especially true if you are in a second marriage and have children from a previous marriage. Writing a will is not just for the wealthy and is not as costly as you may think. You can revoke or make amendments to your will at any time before your death. If you need to amend your will, you can create a new will, or you can create an addendum to your will called a codicil. A codicil is essentially a supplement to a will. It has the same requirements as a will to be valid. When your will goes through the probate process, the codicil is treated as a part of your will.
A will cannot dictate where certain property is distributed. Certain property is transferred outside of probate via contracts, titling, and trusts. For example, some assets have a designated beneficiary such as 401(k)s, individual retirement accounts (IRAs), life insurance contracts, payable-on-death (POD) bank accounts, and transfer-on-death (TOD) investment accounts. If an asset has a designated beneficiary, then that assignment prevails over the will unless the beneficiary is your estate. In addition, property owned as joint tenancy with right of survivorship ( JTWROS), Tenancy by the Entirety (TE) (not available in Georgia), and property held in a trust cannot be distributed via a will. Property owned as JTWROS and TE passes directly to the joint owner(s) after an owner dies, and property held in a trust is distributed according to the trust document.
Content of a Will
Each state has its own laws for writing a valid will. Regardless of the state where you reside, all wills can share some common clauses. The following are some common clauses that are included in a will.
The introductory clause provides your full name and state of residence. The declaration clause states that this will is your last will and testament. This clause also includes the date the will is written as well as revokes any prior wills to ensure the will is the most current. The bequest clause directs who receives specific property or assets and how it will be distributed. The residuary clause indicates how any remaining property or assets that are not specifically bequeathed to individuals will be distributed. Without a residuary clause, some property or assets may not be considered to be part of your estate and may be distributed according to the laws of that state. The will also includes a clause that identifies the executor/executrix of your estate as well as indicates how much power the executor/executrix is given. A guardianship clause appoints a guardian for your minor children or other legal dependents. You may list a successor executor/executrix and guardian in the event that the original executor/executrix or guardian cannot or will not accept the appointment. A clause directing the payment of debts and any estate taxes is included in the will. An attestation clause is where the witnesses (the number of witnesses depends on the state’s requirements) sign and authenticate the will. Georgia requires at least two witnesses to sign the will. A self-proving clause includes the notary assuring that he or she witnessed you and your witnesses sign the will. In Georgia, a notary is not necessary for a will to be valid. However, getting a will notarized speeds up the probate process because the courts do not have to take the time to contact the witnesses who signed the will. A will may contain other clauses but these are the more common clauses.
Dying intestate means dying without a valid will or dying with a will that does not provide instructions for distributing all of your property. If you die intestate, then your property will be distributed according to state laws. The courts will appoint an administrator/administratrix to administer the estate as stated by the laws. It is important to understand your state’s intestacy laws because they determine how your property will be distributed absent a valid will that distributes all of your property. You should realize that property may not end up where you want if you die intestate. This link provides information about Georgia’s intestacy laws: http://www.mystatewill.com/states/GA/GAintcalc.htm. Not writing a will may end up being more costly (attorney fees, time consuming, courts, etc.) than paying to create a valid will.
Even if you have a will, it may be considered invalid under certain circumstances and the estate will still go through the intestate process. A will may be considered invalid for a number of reasons including if you create a new will, if you get married/remarried, if you have a child/adopt a child, or if you move to a new state and your will does not meet the requirements of that state.
Types of Wills
There are a few common types of wills.
A holographic will is handwritten by you (the testator). This type of will contains all of the same content of a typed will and must be signed and dated. Holographic wills are valid in the state of Georgia. These wills must meet all of the state requirements to be legal including age, capacity, and witnesses. Holographic wills can be easy to challenge by other family members, relatives, or whoever may want to contest the will and the will may not hold up in court. Having a holographic will may be better than having no will, but it is important to evaluate the advantages and disadvantages of having this type of will.
A nuncupative will is an oral will given on your death bed when you do not have the ability to write down or type your will. There may be several limitations to this type of will and it is not generally validated. Nuncupative wills are not valid in Georgia because they do not meet the requirement that wills must be in writing.
A statutory will is a will that has been drawn up by an attorney and is in line with all of the state requirements for a valid will. This type of will must be in writing, signed by you, as well as signed by the witnesses. In Georgia, a will must be signed by at least two witnesses in the special manner provided by law. In addition, the witnesses should not be persons who are designated to take any property distributed in the will.
A mutual/reciprocal will is a simple will in which two people have the exact same will leaving all of their property and assets to the other person. These wills are typically used by spouses.
A joint will is one will in which there are multiple testators. This will transfers all the common property or assets to a certain other individual. A joint will ensures the distribution of property or assets that has been agreed upon by you and the other testators, typically spouses. A joint will is common for individuals entering subsequent marriages who have children from a previous relationship so that children from a previous relationship receive certain property or assets. This type of will does have some disadvantages. The will does not take into consideration future events that may occur or changing goals over the years and may distribute the property in a way that was not your original intention. Since it is one will with two testators, the surviving testator cannot change the will without the signature of the other testator.
Requirements for a Georgia Will
Each state has its own requirements for writing a valid will. It is important for you to re-evaluate your will if you move to another state to ensure that it meets that state’s specific will requirements. The following are the requirements for a Georgia will to be valid. The age requirement for a person making a will in Georgia is 14 years old. You must have capacity. Capacity means that you should be of sound mind and memory and understand what you are doing which is dictating how your property will be distributed upon your death. A will in Georgia must be in writing to be valid. You must sign the will. If you are unable to sign the will, then another person, appointed by direction of you, may sign the will on your behalf in your presence. In Georgia, at least two witnesses must sign the will in your presence. Additionally, these witnesses should not be receiving property or assets distributed in your will. A Georgia will may dictate the distribution of your property or assets to any person as long as it is consistent with state laws and policies.
Probate is a legal proceeding. The probate process involves proving the validity of an existing will, supervising the distribution of your assets to your heirs, making sure heirs receive clear title to inherited property, and protecting creditors by making sure debts of the estate are paid prior to distributing assets to heirs. The probate process also involves appointing a person to administer your estate based on your request in the will or state law.
There are several advantages of probate. Most of these advantages entail the protection of the people who are involved in the process. First of all, probate protects you. Since you wrote the will, the probate process tries to ensure that your wishes are carried out according to the will. Probate also protects the heirs in providing them with clear title and a systematic administration of your property/assets. Creditors are also protected by the probate process. The creditors are ensured that they will receive the payments for your debts before your property and assets are distributed to the heirs.
Although the probate process protects those that are involved, there are also some disadvantages to the process. The whole process can take an extended period of time and there may be frequent delays. If the process takes years to complete, and attorneys are involved, the probate process can become costly. There is also a loss of privacy with probate. Since the process is an open court proceeding, the files and documents may be open to the public for viewing.
How to Get Started Writing a Will
Once you establish the need to write a will, the next step is to determine how to go about actually drawing up the will. Lawyers can draft wills for you. They have the knowledge as well as the training and experience. A lawyer can personalize your will and discuss with you your desires and goals with the will. A good estate planning attorney can and will help you think about small things that can make a big difference after you die. For example, if you want to give money to your church, you know it is important to list your church’s name and address. However, many churches have the same name, and if the location of your church changes but you forget to change the address in your will, it is important to put the proper language in the will to make sure the correct church receives the money. The fees charged for drafting a will are based on estimated and actual time spent drafting the will. Lawyers may charge a flat fee or an hourly rate for drafting a will. Each lawyer has different costs but you should be able to discuss these costs before incurring too many expenses.
There are several websites that offer templates for wills at typically a lower cost than a lawyer. However, a template cannot advise you and may not necessarily include all of the state’s requirements for having a valid will. It is important to review the template and make sure it is considered valid and this may include consulting a lawyer. There are also websites that allow individuals to fill out a questionnaire and then a will is drafted and sent to the individual for possibly a lower cost than a lawyer. These websites should also be researched to ensure the validity of the will. Self-prepared wills may contain language which is unclear or confusing and that may cause problems during the probate process. A lawyer is always better able to monitor changes in legislation and case law (State Bar of Georgia, 2006). No matter the route taken to draft a will it is pertinent that you understand the need for a will and the advantages and disadvantages of the different options to draft a will.
This publication contains general information. It is not the intention of the University of Georgia Cooperative Extension to provide any specific legal or medical advice. Individuals are encouraged to consult professionals to help them make an informed decision.
Because laws change, it is important to check with an attorney or other experts to be sure this information is current.
Dalton, M. A., & Langdon, T. P. (2014). Estate planning for financial planners (8th ed.). St. Rose, LA: Money Education
State Bar of Georgia. (2006, April). Fiduciary Law Pamphlet.
The authors express special thanks to the following people who reviewed the publication and shared their comments and suggestions: Phillip Griffeth, Attorney; Lance Palmer, Professor of Financial Planning, Department of Financial Planning, Housing and Consumer Economics, University of Georgia; Rachael Hubbard, Sandy Foster, Lori Franklin, Pearl Solomon, and Angela Hairston, County Agents, University of Georgia Cooperative Extension.
Joan Koonce, Ph.D., AFC®, CPFFE.
Professor and Financial Planning Specialist
Former Financial Planning, Housing and Consumer
Economics Graduate Student
For more information, contact your local University of Georgia Cooperative Extension office.
Visit www.gafamilies.org or call 1-800-ASK-UGA1
Status and Revision History
Published on Apr 12, 2017