Georgia Wills vs. Trusts
Estate planning in Georgia can be straightforward with the right approach. For Georgia residents weighing the pros and cons of wills versus trusts, recognizing their distinct advantages and limitations is crucial for minimizing family complications, reducing costs, and avoiding unnecessary delays. This detailed overview examines Georgia’s specific estate planning regulations and provides guidance to help ensure your assets are distributed according to your intentions.
Table of Contents
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Georgia Will Requirements
A Georgia Last Will and Testament should include:
- Age and Capacity: Testator must be at least 14 years of age and have sufficient mental competency (capable of making a rational decision to dispose of property and actually intends to do so)
- Format: Must be in writing
- Signature: Must be signed by the testator, or another person can sign on behalf of the testator in the testator’s presence and at the testator’s direction
- Witnesses: Must be signed by two competent witnesses (at least 14 years old) who actually observe the testator’s signing of the will
Joint Wills
Georgia law recognizes “joint wills” signed by two or more testators. A joint will can be admitted to probate for each testator’s estate.
Interested Witnesses
Although a beneficiary under a will may act as a witness, any bequest to that witness in the will is void unless there are at least two other competent witnesses to the will.
Self-Proved Wills
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
- 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.
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Amendment, Revision, and Revocation of Georgia Wills
Amending a Georgia Will
A Georgia will may be amended 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.
Revoking 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
- 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 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.
Marriage or Birth After Will Execution
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.
Automatic Revocation by Divorce
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.
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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
Requirements for a Valid Georgia Trust
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. To create a valid trust:
- The settlor 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 have actual intent to create the trust
- The trust must have trust property
- The trust must have a trustee with actual duties
- The trust must have a reasonably ascertainable beneficiary (subject to exceptions for charitable trusts and trusts for the care of animals)
Property Transfer Requirements
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.
Permissible Purposes
A Georgia trust can be created for any lawful purpose.
Revocability
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 Taxes
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
- The estate must either have no creditors or the creditors must not object to summary administration
- Family members must 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:
Spousal Rights: Year’s Support
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.”
Year’s Support Petition
The petition requests an inheritance sufficient to support the spouse or minor child for a period of 12 months. Key aspects of this unique provision include:
- 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
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Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Year’s Support Claims | Subject to claims | May provide protection from claims |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
When It Takes Effect
Wills: After death
Trusts: Can be immediate (living trust) or after death (testamentary trust)
Probate Process
Wills: Requires probate
Trusts: Assets in trust avoid probate
Privacy
Wills: Public record
Trusts: Generally private
Challenges
Wills: Can be challenged in probate court
Trusts: More difficult to challenge
Cost to Create
Wills: Generally less expensive
Trusts: Usually more expensive
Year’s Support Claims
Wills: Subject to claims
Trusts: May provide protection from claims
Protection During Incapacity
Wills: None (requires separate power of attorney)
Trusts: Can provide management if grantor becomes incapacitated
Conclusion
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 Georgia.
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Frequently Asked Questions
Do I need a lawyer to create a will in Georgia?
While Georgia law doesn’t require an attorney to create a valid will, consulting with an estate planning lawyer is highly recommended, especially for complex situations. A properly executed will must meet specific requirements, and an attorney can help ensure your will is legally sound and reflects your wishes accurately. Georgia has particular requirements for witnesses and execution that must be strictly followed. Without proper legal guidance, you risk creating a document that may be challenged or invalidated, potentially resulting in your assets being distributed according to Georgia’s intestacy laws rather than your wishes.
What happens if I die without a will in Georgia?
If you die without a will in Georgia (intestate), state laws determine how your assets are distributed. Your spouse would receive all your property if you have no children. If you have children, your spouse shares the estate with them, receiving at least one-third. Without a spouse or children, your assets go to parents, siblings, or other relatives according to Georgia’s intestacy hierarchy. Additionally, the probate court would appoint an administrator for your estate and guardians for minor children without considering your preferences. Georgia’s intestacy laws may not reflect your wishes, making a will essential for ensuring your assets are distributed according to your desires.
What is Georgia’s “Year’s Support” provision?
Georgia’s “Year’s Support” is a unique provision that protects surviving spouses and minor children instead of the traditional elective share found in many states. It allows them to petition the probate court for an award from the estate meant to support them for 12 months after the decedent’s death. This claim takes priority over nearly all other claims against the estate—including provisions in the decedent’s will. The amount awarded is not fixed by statute and depends on the survivor’s standard of living and needs. This petition must typically be filed within 24 months of death, and the right terminates if the spouse remarries or when a minor child reaches adulthood.
Can minors make a will in Georgia?
Georgia has one of the lowest age requirements in the nation for creating a will. While most states require testators to be at least 18 years old, Georgia allows individuals as young as 14 years of age to create a valid will, provided they have sufficient mental capacity. This means the minor must be capable of making a rational decision to dispose of property and must actually intend to do so. Despite this low age threshold, the minor must still comply with all other will requirements, including having the document properly witnessed by at least two competent individuals who are also at least 14 years old.
Are handwritten wills valid in Georgia?
Unlike some states, Georgia does not recognize purely holographic (handwritten) wills. Even if a will is entirely handwritten by the testator, it must still satisfy all other legal requirements for a valid Georgia will, including being signed by two competent witnesses who observed the testator signing the document. Simply writing out your wishes and signing them without witnesses will not create a valid will in Georgia. A handwritten document might be accepted as a will only if it meets all the formal execution requirements that apply to any other will in the state.
What makes Georgia trusts different from wills?
In Georgia, trusts differ from wills in several key ways. Most notably, Georgia trusts are presumed to be irrevocable unless the trust document specifically reserves the power to amend or revoke—the opposite of many states where trusts are presumed revocable unless stated otherwise. Additionally, Georgia requires that trusts be evidenced in writing and signed by the settlor or their representative. For real estate, a formal deed transferring property to the trustee must be recorded in appropriate land records. While wills only take effect after death, trusts can be effective immediately and can provide asset management during incapacity, privacy, and probate avoidance that wills cannot offer.
Can I disinherit my spouse in Georgia?
While Georgia doesn’t have a traditional elective share law protecting spouses against disinheritance, completely disinheriting a spouse remains challenging due to Georgia’s unique Year’s Support provision. Even if you explicitly exclude your spouse from your will, they can petition the probate court for a year’s support award, which takes precedence over the terms of your will. The court determines an appropriate amount based on your spouse’s standard of living and needs, potentially awarding a significant portion of your estate. Additionally, certain property acquired during marriage may be subject to equitable division under Georgia law. To effectively plan around these provisions, consultation with a Georgia estate planning attorney is essential.
