Estate Planning: Do I Need A Will?
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Estate Planning: Do I Need A Will?

Dying with or without a Last Will and Testament in place will have significant impact on what happens to your assets upon your passing. Those dying without a will in place are considered “intestate”, meaning that the state of Georgia is left to determine what is done with your property and assets. Intestate process will significantly impact the value of the estate through taxes, fees, and other costs associated with Georgia taking over. The results vary greatly based on the scenario, but generally intestate laws pass on your property to the surviving spouse and children before anyone else.

Consider the following intestate law scenarios when making your decision on whether a will is necessary in your estate. A person who is married with no children who dies without a will results in the entirety of their estate going to their surviving spouse. A person who is married with one or two children will have their estate divided equally amongst the surviving immediate family ( ½ to spouse, ½ to child with one child; 1/3 to child, 1/3 to each of two kids with 2 kids, etc.). Those with more than two children will see their estate divided with 1/3 to their surviving spouse and the remainder divided equally amongst the children.

There may be some families and estates where intestate laws will be sufficient, but the vast majority of estates benefit significantly from having a will in place. Many family situations are not straight forward, and intestate process would be inappropriate. You may have children or other close relatives that you do or do not want to include as beneficiaries that would be recipients of your estate if you do not have a will in place.

A will is critical for those who have step- children that they wish to include as beneficiaries of an estate. Unfortunately, Georgia intestate law does not recognize step- children as having equal rights to inheritance. As such, a step- child would be completely omitted from inheritance if an estate passes to intestate laws. Individuals wishing to share a portion of their estate with siblings, surviving parents, or close friends would also need to consider a will in lieu of intestate procedure, as these groups will not be considered in most scenarios involving intestate law.

Non- person beneficiaries, such as charities and non- profits, are also entirely omitted from consideration through intestate procedure. Those who wish to include their churches, charities, or other non- profits as beneficiaries have no choice but to do so through a written will. Generally, it is highly recommended that everyone has a will in place and to not allow your estate to be settled through intestate law. Even those who find themselves in the most basic category of estate planning may have specific wishes or considerations that can only be met through the creation of a will.

Estate Planning: Preparation Of Will

Preparation of your will is the natural progression of the estate planning process following establishment of your inventory of assets, beneficiaries, and executor. At this point you should know exactly what your estate contains, who will receive what, and who will be in charge. The only thing left is to put it into written form.

A properly prepared Last Will and Testament executes these wishes and any others you may have at any point before you pass and the will goes into effect. A will may be modified at any time so long as you remain mentally competent. Circumstances change as time goes on. Family issues, financial boons or struggles, or any other number of infinite possibilities may require that a will be modified from time to time.

The Last Will and Testament is the document that would designate Guardianship for parents who have minor children. This is oftentimes the most critical asset of a will for those who have minor children. The peace of mind afforded to parents knowing where their children will go in the event of the unthinkable is a priceless asset to estate planning.

From a technical perspective, it is critical to be certain that a Last Will and Testament is properly signed, witnessed, and notarized for it to be recognized as a legal will in Georgia. The absolute worst-case scenario is that a will falls short of some sort of legal requirement and becomes unusable. Georgia state laws govern the making and validity of Wills and Georgia only allows written Wills. Nuncupative (oral) Wills are not legal in Georgia. Georgia law does provide for a will to be in hand- written form or typewritten form, but it is generally recommended that either form be reviewed by an attorney for accuracy and proper completion.

There are additional requirements for wills in Georgia in addition to the written requirement. The person writing the will, otherwise known as the “testator”, must be at minimum 14 years of age. The testator must also be of sound mind, meaning that someone deemed mentally incompetent would be incapable of preparing a will. The testator must sign the will in the presence of two witnesses. The witnesses also sign the will as confirmation that they did in fact witness the signature of the testator.

Notarization may also be necessary if your will is prepared by an estate attorney. Most estate attorney offices will have the ability to notarize and witness your estate planning documents, streamlining the entire process significantly.

The signed and completed document is given to the testator for safe- keeping. It is strongly recommended that the testator maintain the original will in a fire- proof safe along with any other essential legal documents and other portions of the planned estate. Copies of the will are given to the testator either digitally or physically and distribution of these copies to beneficiaries is generally recommended. If using an attorney to prepare the estate, the attorney will also keep copies of the documents for their own record in case a change to the will is necessary or the original is lost.

last Will And Testament: Final Thoughts

Allowing your estate to be distributed based on intestate law will devalue your estate and may not provide for those you love most. Those with step- children must be particularly careful if they wish to include them as beneficiaries. Charitable organizations or non- profits are also left out through intestate process. Everyone can benefit from having a will prepared.

Preparing the will considers your completed inventory of assets, beneficiaries, and chosen executor. Georgia does not recognize verbal wills, only written ones. Written wills in Georgia may be hand- written or typed. The testator must have their signature witnessed by two witnesses and the witnesses must affirm their witnessing through signature. Your original will is extremely important and should be treated as such by safe- keeping it in a fireproof safe or equivalent safe measures.

Every estate is different. We look forward to meeting with you and preparing your will to be certain it meets your expectations.