I.  What is a Will?

A Will is a written, legal document witnessed in compliance with laws enacted by the Georgia Legislature expressing your instructions and wishes as to how your property and assets are to be distributed after your death. A Will also contains your instructions and wishes as to whom you wish to care for your minor children if your spouse does not survive you. A Will typically includes everything you own such as your home, real estate, motor vehicles, bank accounts, benefits of insurance policies, furniture, boats, investments such as stock shares, personal jewelry, personal mementos, artwork, and so on.

A properly drawn Will can avoid costs and complications for your Heirs during the difficult time following your death. Without a Will, your property will be distributed according to State law and the Court will select an Administrator for your Estate and a Guardian for your minor children, neither of these people selected by the Court may be the ones you would have selected had you been alive. Also a properly drawn Will can minimize taxes and reduce the time and expense of handling your Estate. Any person, of any age, regardless of the amount of their assets, should seriously consider making a Will. A Will should not only be considered for people who have reached an advanced age or people that have a large number of assets, people die unexpectedly at all ages.

What is required to make a valid Will?

A valid Will is a Will that is accepted by the Court as legally drafted. Among other elements, a valid Will must have the follow features:

§ It must be in writing – handwritten, typed or printed.

§ It must be signed with your signature at the end of the document.

§ It must be witnessed by at least two other people not related to you who are present at the time of signing.  The witnesses need to acknowledge that they were present and must sign the Will as witnesses in your presence.

If your Will is not made in strict accordance with the Georgia law, then the Court may not accept it and it would be unenforceable meaning that the Court will not enforce your wishes expressed in the Will. The Court has discretion to grant or not grant Probate (Probate is confirmation that the Will is valid and accepted) and if the Court does not grant a Will to Probate your possessions could be disposed of as if you hadn’t made a Will at all. Before a Court can grant a Will for Probate, it has to be satisfied that the Will sets out clearly how you wanted your assets to be allocated or distributed and is executed according to the law.

Is a Will drawn by an attorney expensive?

Usually not, most people know that they should have a Will before they die. Unfortunately the majority of people don’t have a Will, and they don’t think about writing a Will until it is too late.

Having a Will drafted by a lawyer doesn’t need to be expensive. Once it is done you can rest easy knowing that your wishes will be followed after your death. The cost of any Will, of course, depends on how much work your lawyer does for you and as Wills become more complicated, the cost rises. You should feel comfortable in asking your lawyer for an estimate of the cost. In general, the trouble and expense of not having a Will far exceed the cost of the Will.

What are the disadvantages of dying without a Will?

If you don’t make a Will, you give up your right to decide who inherits your property. Your property will be distributed according to State law which might be quite different from what you would have wished. For example, if you are married with minor children, in some states your property will be divided solely between your spouse and children, even through you might have preferred to set aside some property for the care of your parents. In most states, your property will be automatically transferred to the State if you die without a Will and are not survived by relatives even through you would have preferred to leave your property to a friend or a charitable organization. And without a Will, you can’t disinherit Heirs.

If you leave no Will, you will lose the opportunity to select a Guardian for your minor children and an Executor for your Estate. Court-appointed Administrators and Guardians may not be the family member or friend that you would have chosen to handle your affairs and/or raise your minor children.

Dying without a Will can be costly and may complicate the transfer of your property to your Heirs. For example, the Estate may have to pay a bond proportionate to the value of the Estate if there is no Will stating that you don’t require Executors and Guardians to post a bond. And finally, Estate Administration proceedings without a Will often delay transfer of your property to your Heirs.

Can I make my own Will?

Yes, sometimes self-drafted Wills or forms downloaded from the Internet have been found to be valid by the Court, but far too often the document is ruled invalid by the Court and thus you will have unknowingly died without a Will. Having a lawyer to prepare your Will is the best way to be certain that your lifetime’s work and assets, built up over many years of hard work, are passed on to the loved ones you want. A professionally drawn Will provides security for your family and those you are responsible for. Most of one’s life is spent building up your assets, you should have confidence that those hard earned assets go to the loved ones you choose rather than to someone else.

Can I change my Will?

Yes, you can change your Will at any time as long as you are of sound mind. You may need to change your Will if you move to a new state, marry, divorce, have a child, acquire substantial property, or suffer the loss of a loved one. Tax law changes may also require a Will to be updated. You should read your Will from time-to-time to consider changes. Your lawyer can make the changes by writing a new Will or by preparing an amendment to your existing Will called a Codicil. A new Will is best if there are many changes. A Codicil may be appropriate for a small change, but all changes must be made with the same legal formalities as a new Will – crossing-out or writing inserts onto your Will might invalidate it.

Selecting an Executor and Guardian and funeral arrangements.

A.  Appointing an Executor.

You will need to choose an Executor in your Will. An Executor locates Heirs, lists property, pays debts, and distributes property to your Heirs. A trusted relative or friend can serve as your Executor, but you should consider using a professional Executor (such as a bank or trust company) if you have a large or complicated Estate. An Executor should be familiar with managing property, financial matters and recordkeeping. Before naming an Executor, confirm that the person is willing to serve. As noted above, your Will can state that the Executor is not required to furnish a bond, thus saving your Estate this expense.

B.  Choosing a Guardian.

If you have children under 18 years old or a child with special needs, you will need to appoint a Guardian for them in your Will. Otherwise, if you and your spouse die at the same time without such an appointment, the Court will select someone as a Guardian to care for your children and manage their inheritance that you might otherwise not have selected had you been alive. Your Will can create a Trust (see Trusts below) to control the property transferred to your children. A Trust is useful if you are concerned that your children may lack the maturity to handle their inheritance after age 18. If you have a Will with a Trust you can choose at what age your children receive their inheritance. Your lawyer can create a Trust in your Will that protects your children and your wishes.

C.  Making Funeral Arrangements.

You can include detailed instructions in your Will for your funeral arrangements. Your family members that survive you will have to make many stressful and important decisions immediately after your death. Providing instructions in your Will regarding burial or cremation, location of burial plots and the type of services to be conducted at your funeral will spare your relatives some of the most difficult decisions during this most stressful time. You can also include instructions about gifts of your body organs to hospitals for research or transplants. Such instructions for gifts of body organs should be noted on your driver’s license and on a separate donor card that you can carry in your wallet.

Civil Unions

If you are in a Civil Union and die without a Will your partner could stand to lose the assets and mementos that rightly belong to him or her. A spouse in a Civil Union does not have an automatic, legal right to your Estate if you die without a Will.

The James Neal Farris Firm welcomes the opportunity to help you with your needs relating to Wills in a manner consistent with the highest professional, ethical and moral standards.

II.  What is a Trust?

A Trust is another tool used in Estate Planning that can be created as part of a Will or as a separate document. A Trust is a legal document that appoints a Trustee to manage your property and gives detailed instructions to them on how the property in the Trust should be managed and distributed. A Trust is the best way to take care of a minor child, a child with special needs, an elderly person or someone who needs help handling money. A Trust may be established during your lifetime, and you may act as your own Trustee, or it may be established by your Will after your death. Trusts are generally more complicated to create than a Will; therefore you should have a qualified attorney to assist you.

The James Neal Farris Firm welcomes the opportunity to help you with your needs relating to Trusts in a manner consistent with the highest professional, ethical and moral standards.

III.  What is a Living Will?

In addition to ordinary Wills that state how you want your property divided at your death, the laws of most states, including Georgia, permit “Living Wills” that instruct your doctors to withhold life support equipment while you are alive but have no hope of recovery. A Living Will is important if your physicians determine that you are comatose with no hope of regaining consciousness. Your Living Will is a written document, separate from your ordinary Will, that allows you to choose a trusted friend or loved one to act as your “health care representative” to make health care decisions for you if you become physically or mentally incapable to do so. After your Living Will is prepared you should give a copy of your Living Will to your doctors and to a close family member.

The James Neal Farris Firm welcomes the opportunity to help you with your needs relating to Living Wills in a manner consistent with the highest professional, ethical and moral standards.

IV.  Assistance to Executors, Administrators and Trustees.

If you have been chosen as an Executor, Administrator or Trustee to a Will or Trust, we can assist you in the management of most issues of Estate Administration.

An Executor, Administrator or Trustee has a multitude of responsibilities. If there is a Will, the Personal Representative follows the directions of the Decedent and administers the Estate. In performing the required functions, the Representative gathers information about the assets and debts of the Estate; gives notification to the Beneficiaries and Heirs; pays all debts and expenses including taxes, files the final personal tax returns and fiduciary returns; and distributes the remaining Estate assets to the Beneficiaries and Heirs.

Many of the same functions are required if there is no Will. In that case, the Representative normally follows the requirements of State law and notifies the legal Heirs. In either case, you will want to feel totally confident about handling these responsibilities.

The James Neal Farris Firm welcomes the opportunity to help you with your Estate Administration issues in a manner consistent with the highest professional, ethical and moral standards.

V.  Assistance in Probate Court matters.

The Probate Court determines the legal authority of Wills, enforces the requirements of valid Wills attempts to prevent wrong doing by Executors and Administrators of Estates, and provides for a fair distribution of the property of persons who die Intestate (without a valid Will).

If a Beneficiary feels that an Estate is being mishandled the Court has the legal authority to require the Executor, Administrator or Trustee to give an account of his actions.

The James Neal Farris Firm welcomes the opportunity to help you with your needs relating to Probate matters in a manner consistent with the highest professional, ethical and moral standards.