Although there are many different ways to prepare a will, they have certain elements in common. Every will expresses the wishes of a testator—that is, the person planning their estate, who will be known as the decedent after their death. The testator must be of legal age to create a will; in Georgia, they only need to be 14 years old. They must also create the will “freely and voluntarily” under Georgia law, not under duress, and their intention to do so must be “decided and rational.” See O.C.G.A. § 53-4-11, § 53-4-12.
In every will, the testator devises or bequeaths gifts of property to persons, trusts, or other entities, known as devisees or beneficiaries. And in order to be valid, the will must comply with the state’s law in form. In Georgia, it must be in writing (whether by hand or type), signed by the testator, and signed by two witnesses. Georgia does not recognize the holographic will, which is handwritten and unwitnessed, or the nuncupative will, which is an oral will.
In law, people often speak of the four basic types of will—
- the simple will;
- the joint or mutual will;
- the testamentary trust will;
- and the living will.
Which Will Is Right for You?
A simple will is a straightforward document. It lists the testator’s property and the corresponding beneficiaries and names their preferred guardian for their minor children if they have any. Simple wills may be sufficient for small estates or as stopgap precautions for later estate planning. However, as you acquire property, grow your family, and develop more complex needs, it is wise to consider different options that can accomplish more for your estate.
A joint will represents the wishes of two people—generally but not necessarily married—in a single instrument. Both testators must sign it. In some states, a joint will cannot be revoked after one of the testators dies, but this is not the case in Georgia unless the testators make a separate contract to that effect. Similarly, mutual wills are separate documents that make reciprocal testamentary gifts between the two testators. Joint or mutual wills can be good choices for long-term partners, but they may not meet every couple’s needs. One testator may outlive another for a long time, perhaps remarrying, acquiring new property, or otherwise making changes to their estate. If their family was aware of the joint will, it might cause particular tension to alter it after the death of one partner. Moreover, the joint will may not be able to address more complex financial or familial situations by itself.
In a testamentary trust will, the testator creates one or more trusts that come into existence upon their death. These trusts will be the beneficiaries of some or all of the decedent’s estate. Testamentary trusts are a good way to devise gifts of money or property that should only be used at a certain date or for a particular purpose, such as college funds for minors or special needs trusts for disabled persons. They can also be created to safeguard inheritances from outside parties, such as ex-spouses or creditors, or as charitable trusts. However, gifts to testamentary trusts have to go through the probate process, which is lengthy and expensive. This may cause difficulties for your beneficiaries if they need the resources at the time of your death. When a will devises the rest of a testator’s property to a living trust—one that had already been formed during the testator’s lifetime—this is called a “pour-over will,” and it has many of the same advantages and disadvantages.
“Living will” is the common term for an advance directive that expresses your wishes in the case of a terminal illness, coma, or persistent vegetative condition. Although it is spoken of as a “fourth type,” the living will is not a literal will; it does not deal with property or go through probate. But it is perhaps the most crucial to your estate and your end-of-life planning. Your loved ones must know whether and how you want them to continue life-sustaining treatments when you can no longer speak for yourself.
To protect yourself when you are incapacitated but not terminal, you will need to give a trusted person a durable power of attorney that takes effect when you cannot express your own decisions. With this, your agent can make health care decisions for you or handle financial matters for as long as you are unable to do so.
How Should You Create Your Will?
Although it is possible to create a will, especially a simple will, with pointers or forms from online sites, it can be hazardous to trust your estate planning to copy-and-paste. Books or websites cannot always assure you that your gifts are legally valid or that the forms will be effective in the jurisdiction of your estate. Usually, your estate’s jurisdiction is your state of residence—but what if you own property in another state? What do you need to know about your own circumstances and the instruments that will express your wishes under the law?
Mike Bascom, a Georgia wills attorney, can consult with you not only about your will but about a comprehensive plan for your estate. This will help you avoid probate as much as possible and give you and your loved ones peace of mind in the coming years. Call Bascom Law, P.C., today at 770-285-5493 to schedule an appointment at our Forsyth County office.