Georgia Estate Planning Questions and Answers by an Atlanta Estate Planning Attorney

Georgia Estate Planning Question:  What is the effect of adoption in connection with estate planning in Georgia?

Answer by Atlanta Estate Planning Attorney:  A decree of adoption, whether issued by a court of Georgia or by a court of any other jurisdiction, shall have the effect described in O.C.G.A. § 19-8-19, and the adoptive parents and relatives of the adoptive parents shall likewise be entitled to inherit from and through the adopted individual under the laws of intestacy in the absence of a will and to take as parents or relatives of the parents of the adopted individual under the provisions of any instrument of testamentary gift, unless expressly excluded therefrom.

Except with respect to a spouse of the adoptive parent and relatives of the spouse, a decree of adoption shall terminate all legal relationships between the adopted individual and his or her relatives, including his or her parent, so that the adopted individual thereafter shall be a stranger to his or her former relatives for all purposes, including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship.

A decree of adoption shall create the relationship of parent and child between the adoptive parent and the adopted individual, as if the adopted individual were a child of biological issue of the adoptive parent.  The adopted individual shall enjoy every right and privilege of a biological child of the adoptive parent and shall be deemed a biological child of the adoptive parent.  The adopted individual shall have the right to inherit under the laws of descent and distribution in the absence of a will, and to take under any instrument of testamentary gift, bequest, devise, or legacy, whether executed before or after the adoption is decreed, unless expressly excluded therefrom.  The adopted individual shall take by inheritance from relatives of that petitioner, and shall also take as a child of that petitioner under a class gift made by the will of a third person. 

If a parent of a child dies without the relationship of parent and child having been previously terminated by court order, the child's right of inheritance from or through the deceased parent shall not be affected by the adoption.

Georgia Estate Planning Question:  How old must you be to make a valid will in Georgia?

Answer by Atlanta Estate Planning Attorney:  An individual who is fourteen (14) years of age or older may make a will in Georgia, unless he or she is laboring under some legal disability arising either from a want of capacity or want of perfect liberty of action.

Georgia Estate Planning Question:  What are the general rules in Georgia regarding capacity to make a will?

Answer by Atlanta Estate Planning Attorney:  Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.  An incapacity to contract may coexist with the capacity to make a will.  Except during a lucid interval, an insane individual generally may not make a will.  A monomaniac may make a will if the will is in no way connected with the monomania.  In the case of insanity or monomania, it must appear that the will expresses the wishes of the testator unbiased by the insanity or monomania with which the testator is affected.  Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.

Georgia Estate Planning Question:  Is it possible for a person to lack the capacity to make a contract, but have the capacity to make a will?

Answer by Atlanta Estate Planning Attorney:  Yes.  An incapacity to make a contract may coexist with the capacity to make a will.

Georgia Estate Planning Question:  Is a will valid if it is not freely and voluntarily executed?

Answer by Atlanta Estate Planning Attorney:  No.  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 Estate Planning Question:  Must a will be in writing in Georgia to be valid?

Answer by Atlanta Estate Planning Attorney:  Yes.  A will must be in writing and must be signed by he testator or by another individual in the testator's presence and at the testator's express direction.  Therefore, it is possible for a person without arms or the use of his or her arms to make a will in Georgia.  A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator's will.

Georgia Estate Planning Question:  How many witnesses to a will are required in Georgia and how old must they be?

Answer by Atlanta Estate Planning Attorney:  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.  However, another individual may not subscribe the name of a witness.  A witness must be at least fourteen (14) years of age.

Georgia Estate Planning Question:  What is required to execute a codicil in Georgia?

Answer by Atlanta Estate Planning Attorney:  A codicil shall be executed by the testator and attested and subscribed by witnesses with the same formaility as a will.

Georgia Estate Planning Question:  Is a will valid if the testator does not have knowledge of the contents of the will?

Answer by Atlanta Estate Planning Attorney:  No.  There is a presumption that the testator had knowledge of the contents of the will if the testator could read and he signed the will.  

Georgia Estate Planning Question:  What is the effect of a beneficiary signing as a witness?

Answer by Atlanta Estate Planning Attorney:  The gift to the witness is void unless there are at least two other subscribing witnesses who are not beneficiaries under the will.

Georgia Estate Planning Question:  May a person exclude his or her spouse and children from receiving property under his or her will?

Answer by Estate Planning Attorney:  Yes.  A person may give all of his property to strangers to the exclusion of his spouse and descendants pursuant to O.C.G.A. Section 53-4-1.