Wills, Trusts & Estates

Will are not just for the rich and famous. In Georgia, anyone who is not otherwise incapacitated and who is over the age of 14 can make a Will.

If an adult has been the fortunate recipient of assets from business endeavors, family, or friends, then a Will is important for the disposition of those assets. If a judgment has been rendered in favor of a person then the judgment should be included in the Will if the proceeds should not be distributed pursuant to the Georgia statute of Descent and Distribution.

While the situations where teenagers make a Will are less common than for adults, a Will for individuals as young as 14 can serve a useful purpose for the assets that they possess. A young person may own a special item such as a musical instrument, a car, or beloved animals, and a Will is needed to make sure that the special item is distributed to the desired beneficiary.

Many assets that you may own are not subject to probate if you have made a will, and do not pass by intestate succession laws during probate if you did not make a will. This determination is made based upon how the asset is titled by you during your life or whether you have named a beneficiary for that particular asset.

Examples of assets that do not pass or are not distributed through the process of probate are:

  • life insurance proceeds if you have named a beneficiary for your policy other than your Estate;
  • 401(k) or other retirement account if you have named a beneficiary for that account other than your Estate;
  • property you have transferred to a living trust that will pass to the named beneficiary of the trust;
  • a bank account that is a payable on death bank account with a named recipient;
  • property that you hold in joint tenancy with another person (most commonly by a joint tenancy with the right of survivorship deed) that will pass to the survivor at the death of either one of the joint tenants; and
  • a securities or investment account with a transfer on death provision or a named beneficiary.

If you have heard of individuals who are attempting to avoid probate completely, such persons generally hold their real estate assets as a joint tenancy, and all accounts that allow a beneficiary designation or a payable or transferable on death designation have such a designation. Any remaining property is placed in a trust that is titled in the name of the trustee with a named beneficiary. If all assets are titled in this manner, an individual may be able to avoid probate in its entirety. If not, then only those assets that are not titled in the manner stated above, and are owned solely in the name of the deceased individual, will be subject to probate.

“Personal Representative” is the term used in the State of Georgia for that person who is approved by the Probate Court to handle the affairs of the Estate to its conclusion. A “Personal Representative” is the collective term for any person who is named Administrator/Administratrix, in a Probate case where there is no Will, or Executor/Executrix in a Probate case where there is a Will, or an Administrator/Administratrix With the Will Annexed where a Will has been made with no Executor named or where a named Executor cannot serve and no successor has been named.

The choice of a personal representative is left to the testator making the Will. If no Will is made, then the choice of personal representative is left to the choice of the Probate Judge after a Petition to Probate is filed. The Petitioner filing the Petition to Probate is filing in order to be named Personal Representative; however, another party may be named if the Petitioner is found to be unfit, biased, or some other impediment is found.

The Personal Representative should be a competent adult with capacity sufficient to pursue the business of probating an Estate in a fiduciary capacity and who has the time to serve. The most common choice is a willing family member. If the testator making a Will does not have a willing and competent family member, a professional person who acts as a personal representative for a fee may be appointed to serve.

If a Personal Representative is named in the Will, but at the time of the passing of the testator, the named Personal Representative declines to serve or cannot serve for any reason, then a successor Personal Representative can serve if named in the Will. If there is no Successor Personal Representative named, then one must be appointed by the Court. For this reason, when making a Will, it is advisable to name both a Personal Representative and a Successor Representative when making a Will.

While divorce is a subject that no one likes to contemplate, divorce percentages are at a high level. Often after a divorce is completed, individuals realize that a Will that was made previously during the marriage no longer is accurate after divorce. There may be worry about whether a new Will is needed.

If a Will is made and a divorce occurs subsequent to the date of the making of the Will, upon the passing of the testator, the assets are distributed as if the divorced spouse was deceased prior to the death of the testator. The assets are distributed by the remaining terms of the Will, which may or may not be reflective of the desires of the testator subsequent to the divorce.

If the manner of distribution of the Estate in accordance with the terms of the Will is not desirable, assuming the death of the ex-spouse prior to the date of death of the testator, then a new Will is needed in order to clarify the current desires of the testator concerning the intended beneficiaries of the Probate Estate.

In Georgia, the requirements for executing a Will must be followed strictly or the Will can be found to be invalid even though it may actually represent the desires of the deceased.

A properly drawn Will must have the signature of the testator and two witnesses. The two witnesses must be observable by the testator as the Will is being signed, or the testator may sign his or her Will, present it to the witnesses for signing, affirm his or her signature, and the witnesses may affix their signature. If the testator affirms his or her signature on the Will to the witnesses, then their signatures are valid. The three signatures of the testator and the two witnesses, appropriately affixed, are sufficient to make a valid Will.

In order to avoid calling the witnesses to the Will into Probate Court to validate the signature, often years after the Will was signed, an Affidavit is attached to the Will in which the testator affirms that he or she is over 14 years of age, that he or she is voluntarily executing the Will, and that he or she affirms that the document is his Will. The Georgia legislature has, by statute, specified the exact wording that must be used in order to make a valid Affidavit.

The Affidavit must be signed by two witnesses and the testator with a notary public seal affixed. This Affidavit is known as a self-proving Affidavit.

If the Affidavit is worded and signed correctly, when the Will is probated, there is no need to question the witnesses to the Will, either in person or in the form of Interrogatories to the Witness to the Will, in order to verify that the signatures on the Will are authentic. If the Affidavit is not valid, witnesses may be needed to prove the authenticity of the signatures on the Will.

Careful selection of the witnesses to a Will is important. Since a Will may not be probated for decades after it is made, selection of a witness who is easy to locate may be critical in probating a Will if the Affidavit is found to be invalid.

Once you have made a Will, it is important to keep the Will safe until the time of Probate. The original Will must be filed with the Probate Court at the time the probate of the Estate begins. The Probate Court will not accept a copy of the original Will in lieu of the original unless the Petitioner filing to probate the Estate proves that the copy of the original is a true and correct copy. This procedure adds yet another layer to the process of Probate as well as increasing the time spent in the Probate process.

There are no laws governing where a Will must be kept after it is executed, and the maker of the Will is free to determine where the Will is going to be kept after execution. Common choices are to give the executed original to the named Executor, to place the Will in a home safe, to place the Will in a Safe Deposit Box, or to allow the executed original to remain with the preparing attorney at his or her law firm.

Difficulties may arise with some of the choices for the safekeeping of a Will. For example, placing the Will in a safe or a safe deposit box is generally a poor choice if the executor or other heir does not have a key to the safe or legal access to the safe deposit box. After your passing, the Executor may be locked out of obtaining the Will. Casually leaving the Will among other business papers in the home may also present difficulties and it may not be found when it is needed or it may be discarded by accident. Placing the Will where there is no protection from fire or flood may result in a destroyed document.

The most important factor in determining the treatment of the Will after it is executed is to make sure that at least one, and preferably more than one, relative knows of the whereabouts of the Will so that it may be found promptly in order to allow your heirs to follow your wishes immediately after your passing.

The Petition to Probate generally is filed by the individual who is petitioning the Court to be appointed the Personal Representative. The Petition is one of many standard Probate Court forms that must be used in filings with the Probate Court.

The Petition contains information concerning the identity and date of death of the deceased, the heirs of the deceased, other information about the Estate, a statement that the Petitioner wishes to be named Personal Representative, and the basis for his or her qualification as Personal Representative.

The Petition to Probate is accompanied by an Assent to Probate form each of the heirs that do not oppose the probate. If the Affidavit accompanying the Will is deficient, the Petition may be accompanied by Interrogatories to the Witnesses to the Will.

Filing of the Petition to Probate generally begins the Probate Process.

If the Petition to Probate is in order, the Probate Judge will administer an oath of office to the Petitioner in which the Petitioner pledges to uphold the office of Personal Representative. Ordinarily, the administration of the oath of office requires a personal appearance at Probate Court. Once the oath is administered, the Probate Court will issue Letters Testamentary.

Letters Testamentary show that the Personal Representative has been duly appointed to his or her office. When trying to conduct the business of the estate, the Personal Representative may be required to sign legal documents, and he or she only can do so based upon the authority of the Letters Testamentary.

Once the Letters have been issued, the business of marshalling the assets of the Estate for future distribution can begin.

Once the Personal Representative has been appointed, he or she has a period of 60 days in which to run the Notice to Debtors and Creditors in the legal organ of the county in which the probate proceeding is pending. The Notice must appear for four consecutive weeks in the legal organ of the county in which the Probate action is pending.

The purpose of the Notice is to notify any creditor of the Estate and any party who is indebted to the Estate that the Estate is being probated. The creditor or debtor must move in response to the Notice to collect or pay the pending indebtedness before the Estate is closed.

Once the assets and debs of the Estate have been determined, the Personal Representative must pay the debts of the Estate from the available funds. The order in which the debts must be paid is set out by the Georgia legislature. The purpose of paying debts in a certain order is required so that if the assets are insufficient to pay all debts, the creditors that have inferior legal standing are those that are not paid.

The claim with the highest priority is a year’s support if it is awarded to the family of the deceased.

The next claim in priority are the funeral expenses of the deceased.

Third in line for payment are the expenses of administration of the Estate. This category includes professional services such as legal and tax advice, costs of sale, the commissions of the Personal Representative, court filing fees, and advertising costs.

The reasonable expenses of the last illness of the deceased are the fourth priority and are generally characterized as medical and care expenses.

The next level consists of debts due the United States such as unpaid taxes.

Liens, secured loans, and judgments against the deceased are the sixth level in priority. If there are multiple liens, the legislature has enacted additional laws setting priorities among liens.

The lowest level of priority is all remaining debt not fitting the priorities above.

The Personal Representative is required to pay the highest priority claims first, and if the Personal Representative fails to pay the debts in the correct order by paying a lower priority claim first, a higher priority claimant who was not paid may attempt to hold the Personal Representative liable.

All debts of the Estate must be paid before any distribution to the heirs.

Distribution of the assets of the Estate can occur only after all claims, taxes, and expenses have been paid.

If there is no Will, the assets of the Estate must be distributed in accordance with the Georgia statute of Descent and Distribution. The Probate Court must approve manner of distribution.

If the deceased made a Will, the Personal Representative is required to act as directed in the Will. If the Will contains a specific direction concerning a particular bequest, then the Personal Representative must distribute the item as directed by the Will. If the Estate contains funds only, then the specified amounts must be distributed to the beneficiaries. Real property may be distributed by deed to the intended beneficiary.

Personal Representatives need be aware that their actions may be scrutinized by beneficiaries or omitted beneficiaries. An interested person may file an objection in the Probate Court concerning the actions of the Personal Representative if there is a basis for disagreement over the manner of distribution of assets of the Estate.

Complete records should be kept of all transactions that have occurred in the administration of the Estate.

The Letters Testamentary issued by the Probate Court generally reflect the reporting requirements placed upon the Personal Representative. On many occasions, the Personal Representative is relieved of reporting to the Court by the terms of the Will.

If reporting is required, there are two types of reports that are most common.

Accountings or Returns – Within 60 days of the anniversary date of appointment, an annual return is due until the Personal Representative is discharged. The return states under oath the receipts and expenditures on behalf of the Estate during the prior year. The return also may contain an inventory of the assets of the Estate, and the Probate Court may require that receipts be filed. A copy of the return must be mailed to each heir or beneficiary, and the Personal Representative must certify to the mailing.

Inventory – Within six months of the appointment of the Personal Representative, an inventory is due. The inventory must show a list of all the assets of the Estate and the value. The Personal Representative must certify as to having mailed a copy to the heirs or beneficiaries, and he or she must state on oath that the inventory is accurate.