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GEORGIA LEGAL INFORMATION
Last Will and Testament Statutes
Link to the Georgia Statutes online which contain the portion of the Probate Code dealing with last wills, see Section 53-4-1 G, et al.
American Bar Association Guide to Wills and Estates
American Bar Association, Estate Planning
Selected Georgia Statutes
- Georgia Code Section 53-4-1. A testator, by will, may make any disposition of property that is not inconsistent with the laws or contrary to the public policy of the state and may give all the property to strangers, to the exclusion of the testator's spouse and descendants.
- Georgia Code Section 53-4-3. No particular form is necessary to constitute a will. To determine whether an instrument is a will, the test is the intention of the maker to be gathered from the whole instrument, read in light of the surrounding circumstances. If the intention is to convey a present interest, though the possession is postponed until after death, the instrument is not a will. If the intention is to convey an interest accruing and having effect only at death, the instrument is a will.
- Georgia Code Section 53-4-10. Who may make a will.
(a) 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.
(b) An individual who has been convicted of a crime shall not be deprived of the power to make a will.
- Georgia Code Section 53-4-11. Testamentary Capacity.
(a) Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.
(b) An incapacity to contract may coexist with the capacity to make a will.
(c) An insane individual generally may not make a will except during a lucid interval. A monomaniac may make a will if the will is in no way connected with the monomania. In all such cases, it must appear that the will expresses the wishes of the testator unbiased by the insanity or monomania with which the testator is affected.
(d) Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.
- Georgia Code Section 53-4-12. Undue Influence. A will must be freely and voluntarily executed. A will is not valid if anything destroys the testator's freedom of volition, such as fraudulent practices upon the testator's fears, affections, or sympathies; misrepresentation; duress; or undue influence whereby the will of another is substituted for the wishes of the testator.
- Georgia Code Section 53-4-20. Execution and signature of will; witnesses.
(a) A will shall be in writing and shall be signed by the testator or by some other individual in the testator's presence and at the testator's express direction. A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator's will.
(b) A will shall be attested and subscribed in the presence of the testator by two or more competent witnesses. A witness to a will may attest by mark. Another individual may not subscribe the name of a witness, even in that witness's presence and at that witness's direction.
(c) A codicil shall be executed by the testator and attested and subscribed by witnesses with the same formality as a will.
- Georgia Code Section 53-4-21. Knowledge of the contents of a will by the testator is necessary to the validity of a will. If the testator can read, the testator's signature or acknowledgment of that signature is presumed to show such knowledge.
- Georgia Code Section 53-4-22. Witnesses.
(a) Any individual who is competent to be a witness and age 14 or over may witness a will.
(b) 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.
- Georgia Code Section 53-4-23. Witnesses who are beneficiaries.
(a) 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.
(b) 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.
- Georgia Code Section 53-4-30. Self-proving wills.
(a) 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 probate regarding such will may be made unnecessary by the affidavits of the testator and the attesting witnesses made before a notary public. The affidavit and certificate provided in subsection (b) of this Code section shall be the only prerequisites of a self-proved will or codicil.
(b) The affidavit shall be evidenced by a certificate, affixed with the official seal of the notary public, that is attached or annexed to the will or codicil, in form and content substantially as follows:
STATE OF GEORGIA
COUNTY of ___________
Before me, the undersigned authority, on this day personally appeared _______________________, ______________________, and _______________________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and all of said individuals being by me duly sworn, _______________________, testator, declared to me and to the witnesses in my presence that said instrument is the last will and testament or a codicil to the last will and testament of the testator and that the testator had willingly made and executed it as a free act and deed for the purposes expressed therein. The witnesses, each on oath, stated to me in the presence and hearing of the testator that the testator had declared to them that the instrument is the testator's last will and testament or a codicil to the testator's last will and testament and that the testator executed the instrument as such and wished each of them to sign it as a witness; and under oath each witness stated further that the witness had signed the same as witness in the presence of the testator and at the testator's request; that the testator was 14 years of age or over and of sound mind; and that each of the witnesses was then at least 14 years of age.
_______________________
Testator
_______________________
Witness
_______________________
Witness
Sworn to and subscribed before me by _______________________, testator, and sworn to and subscribed before me by _______________________ and _______________________, witnesses, this ______ day of ______________, ____.
(SEAL)
(Signed)______________________________
(Official Capacity of Officer)
- Georgia Code Section 53-4-31 Joint Wills.
(a) A joint will is one will signed by two or more testators that deals with the distribution of the property of each testator. A joint will may be probated as each testator's will.
(b) Mutual wills are separate wills of two or more testators that make reciprocal dispositions of each testator's property.
.
- Georgia Code Section 53-4-33. Revocation of a Joint Will.
(a) A joint will or mutual wills may be revoked by any testator in the same manner as any other will.
(b) Revocation of a joint will or a mutual will by one of the testators shall not revoke the will of any other testator.
- Georgia Code Section 53-4-42. 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.
- Georgia 53-6-10. Nomination (of executor) by testator
(a) No formal words are necessary for the nomination of an executor. An expression by the testator of a desire that the person carry into effect the testator's wishes shall amount to a nomination as executor.
(b) Unless adjudged unfit, nominated executors shall have the right to qualify in the order set out in the will.
(c) An individual who has not reached the age of majority may be nominated as an executor but may not qualify until reaching the age of majority.
(d) If the will names a person to fill a vacancy in the office of executor or provides a method of selecting a personal representative to fill the vacancy, any vacancy shall be filled or selection made as provided in the will.
Library of Informational Legal Articles
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