Georgia Last Will and Testament Law

Wills and Estates – Last Will and Testament Law – Georgia

Note:    This summary is not intended to be an all inclusive discussion of the law of wills in Georgia, but does contain basic and other provisions. This summary does not include hand written wills, or the situation where the testator cannot write his or her name. Summary is based on the Georgia Revised probate code of 1998.

Minimum age: Every individual 14 years of age or older may make a will, unless laboring under some legal disability arising either from a want of capacity or a want of perfect liberty of action can make a will.  An individual who has been convicted of a crime has also the power to make a will.  53-4-10.

Execution: A will shall be in writing and shall be signed by the testator and shall be attested and subscribed in the presence of the testator by two or more competent witnesses.  A codicil shall be executed by the testator and attested and subscribed by witnesses with the same formality as a will. 53-4-20.

Competency of witness: Any individual who is competent to be a witness and age 14 or over may witness a will.  If a witness is competent at the time of attesting the will, the subsequent incompetence of the witness shall not prevent the probate of the will.  The witness has to be competent only at the time of attestation, and not at the time of probate.  53-4-22.

Testamentary gift to witness or witness’s spouse: If a subscribing witness is also a beneficiary under the will, the witness shall be competent; but the testamentary gift to the witness shall be void unless there are at least two other subscribing witnesses to the will who are not beneficiaries under the will.  An individual may be a witness to a will by which a testamentary gift is given to that individual’s spouse, the fact going only to the credibility of the witness.  53-4-23.

Self-proved will or codicil: At the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, a will or codicil may be made self-proved and the testimony of the witnesses in the date regarding such will may be made unnecessary by the affidavits of the testator and the attesting witnesses made before a notary public.  Self proving will forms are provided under this section.  53-4-24.

Express or implied revocation:

(a) A revocation may be express or implied.

(b)  An express revocation occurs when the testator by writing or action expressly annuls a will. An express revocation takes effect instantly.

(c)  An implied revocation results from the execution of a subsequent inconsistent will that does not by its terms expressly revoke the previous will. An implied revocation takes effect only when the subsequent inconsistent will becomes effective. If the subsequent inconsistent will fails to become effective from any cause, the implied revocation is not completed.  53-4-42.

Subsequent will or other written instrument: An express revocation may be effected by a subsequent will or other written instrument that is executed, subscribed, and attested with the same formality as required for a will.  53-4-43.

Destruction or obliteration of will or material portion thereof: An express revocation may be effected by any destruction or obliteration of the will done by the testator with an intent to revoke or by another at the testator’s direction. The intent to revoke shall be presumed from the obliteration or cancellation of a material portion of the will, but such presumption may be overcome by a preponderance of the evidence. 53-4-44.

Effect of testator’s marriage, or birth or adoption of child; provision in will for class of children: (a) Except as otherwise provided under the paragraph below entitled, effect of testator’s divorce, annulment, or remarriage to former spouse, the marriage of the testator, the birth of a child to the testator, including a posthumous child born within ten months of the testator’s death, or the adoption of a child by the testator subsequent to the making of a will in which no provision is made in contemplation of such event shall result in a revocation of the will only to the extent provided in the remainder of this Code section.

(b) A provision in a will for a class of the testator’s children shall be presumed to be made in contemplation of the birth or adoption of additional members of that class, absent an indication of a contrary intent, and the mere identification in the will of children already born or adopted at the time of the execution of the will shall not defeat this presumption.

(c) If the will was made prior to an event specified in subsection (a) of this Code section, and does not contain a provision in contemplation of such an event, the subsequent spouse or child shall receive the share of the estate he or she would have received if the testator had died intestate. Such share shall be paid from the net residuum remaining after all debts and expenses of administration, including taxes, have been paid. If the residuum proves to be insufficient, then testamentary gifts shall abate in the manner provided in subsection (b) of Code Section 53-4-63. Any bequest in the will in favor of the subsequent spouse or child shall be given effect and shall count toward the intestate share. If the bequest equals or exceeds the intestate share, then the subsequent spouse or child shall receive the bequest in lieu of the intestate share provided by this subsection. 53-4-48.

Effect of testator’s divorce, annulment, or remarriage to former spouse: All provisions of a will made prior to a testator’s final divorce or the annulment of the testator’s marriage in which no provision is made in contemplation of such event shall take effect as if the former spouse had predeceased the testator.  If the testator remarries the former spouse and the testator has not revoked or amended the will that was made prior to the divorce or annulment, the remarriage shall not result in the revocation of the will and the provisions of the will that were revoked solely due to the application of this section shall be revived.  53-4-49.

Inside Georgia Last Will and Testament Law