When deciding between a will or trust in Georgia or making other estate planning decisions in this state, it is important to understand the key differences between these two primary different estate planning tools and the general rules regarding estate documents.
Statutory Authority.
Georgia Code, Title 53 (Wills, Trusts, and Administration of Estates).
Wills: Chapter 4 (O.C.G.A. §53-4-1, et. seq.).
Trusts: Chapter 12 (O.C.G.A. §53-1-12, et. seq.).
Georgia Will Requirements.
To create a valid will in Georgia, a testator must be at least 14 years of age and must have sufficient mental competency. A testator is competent to create a Georgia will if he or she is capable of making a rational decision to dispose of property and actually intends to do so. If the testator’s creation of the document results from fraud, duress, or the undue influence of another person, a will is not valid.
To be valid under Georgia law, a will must be in writing and must be signed by the testator, except that another person can sign on behalf of the testator in the testator’s presence and at the testator’s direction. Georgia law also recognized “joint wills” signed by two or more testators. A joint will can be admitted to probate for each testator’s estate.
Along with the testator’s signature, a Georgia will must be signed by two competent witnesses. Witnesses must be at least 14 years old and must actually observe the testator’s signing of the will. Although a beneficiary under a will may act as a witness, any bequest to that witness in the will is avoid unless there are at least two other competent witnesses to the will.
As long as the specific statutory requirements are met, the Georgia Code does not prescribe any particular format for wills. Under Georgia law, the question as to whether a given instrument constitutes a will is determined based on the intent of the person creating the document, in light of the circumstances surrounding execution of the document.
A Georgia will can be made “self-proved” through execution by the testator and the will’s witnesses of a notarized affidavit. When a will is self-proved, it can be admitted to probate based upon the affidavit and without testimony from the witnesses. The affidavit may be executed at the same time as the will itself or at a future time, as long as the testator and witnesses remain living.
Within the self-proved affidavit, the testator attests that the document was created as a will under the testator’s own volition. Witnesses attest that the testator declared to them that the document was intended as the testator’s will and that the witnesses signed at the testator’s request. The Georgia Code, at §53-4-24, includes a proposed form for the affidavit.
Amendment, Revision, and Revocation of Georgia Wills.
A Georgia will may be amended or revoked at any time prior to the testator’s death. Amendment can be accomplished through a codicil (a later-executed addendum to an existing will); provided, however, the codicil must satisfy all formalities required for a Georgia will.
Revocation of a will can be express, through the testator’s intentional destruction of the will or through execution of a later will or other document that satisfies the requirements for valid wills. If a will is unintentionally destroyed, a copy can be admitted to probate if evidence can be produced showing that the destruction was unintentional and that the copy is an accurate reproduction.
Revocation can also be implied by execution of a later will that includes provisions that are inconsistent with the earlier will. In that case, only the inconsistent provisions from the prior will are revoked, and any provisions that are not inconsistent remain effective.
If a testator is married or has a child after execution of a will—and if the testator’s will does not contemplate the marriage or birth—the spouse or child receives a share of the estate as if the testator had died intestate. If a testator is divorced after executing a will and the will does not contemplate the divorce, the will is interpreted as if the former spouse had predeceased the testator.
Holographic and Oral Wills.
Georgia law does not recognize holographic wills. A handwritten will can still be valid, but it must satisfy all of the other requirements for execution of a valid will, including attestation by witnesses.
Oral (or “nuncupative”) wills are no longer recognized under Georgia law.
Georgia Trust Requirements.
An express trust in Georgia must be evidenced by a writing signed by the settlor or someone acting under power of attorney with the settlor’s express consent. The settlor of a Georgia trust must have legal capacity to create the trust. For living trusts, that means having capacity to transfer title to property. For testamentary trusts, capacity is the same as the capacity to make a will.
The settlor must also have actual intent to create the trust, and the trust must have trust property, a trustee with actual duties, and a reasonably ascertainable beneficiary (subject to exceptions for charitable trusts and trusts for the care of animals).
For property to be transferred to a trust, legal title must formally pass to the trustee. In the case of real estate, a deed or other instrument of conveyance must be recorded in the relevant land records.
A Georgia trust can be created for any lawful purpose. Georgia trusts are assumed to be irrevocable unless the power to revoke or amend the trust is expressly reserved by the settlor. A revocable trust may only be modified or revoked via a writing signed by the settlor.
Special Considerations.
Estate Tax: The Georgia legislature repealed Georgia’s estate tax beginning in 2005. Large Georgia estates may still be liable for federal estate taxes.
Small Estate Affidavit: Georgia law allows some small estates (defined as estates with assets totaling less than $10,000) to avoid probate if a surviving family member completes a small estate affidavit. For an estate to be eligible for the small estate affidavit, the decedent must be intestate, and the estate must either have no creditors or the creditors must not object to summary administration. Additionally, family members musto agree on the manner in which property will be distributed.
Non-Probate Transfers: Georgia law provides several mechanisms for transfer of assets outside of probate. If an asset is co-owned as joint tenants with a right of survivorship, a surviving co-owner automatically receives the other owner’s interest upon that owner’s death. Georgia does not recognize tenancy by the entireties for married couples. POD (payable-on-death) designations can be added to financial accounts and CDs. TOD (transfer-on-death) designations may be used with securities and some investment accounts. Georgia does not recognize TOD designations on real estate deeds or motor vehicle titles.
Spousal Rights: Georgia law does not specifically provide for a spousal elective share protecting surviving spouses against disinheritance. Instead, Georgia protects surviving spouses and minor children through a right to petition the probate court for a “year’s support.” The petition requests an inheritance sufficient to support the spouse or minor child for a period of 12 months. Claims for a year’s support take precedence over creditor claims and asset disposition provisions within a will. The amount to be awarded is not defined and depends in part on the amount requested by the surviving spouse or minor child, subject to objections by other interested parties. The right to a year’s support ceases if a surviving spouse remarries or a minor child reaches the age of majority.
Creating a will or trust does not have to be difficult or intimidating. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)—can add a layer of complexity and result in unforeseen long-term consequences. Whenever any out-of-the-ordinary issues are present, it’s a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
