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Is Your Will Valid?

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In 2015, the Georgia legislature updated the requirements for executing a valid statutory Will.  Does your Will need to be reviewed?  Consider the following points for a Will to be valid in Georgia.

1.    Testamentary Capacity.   In order to have testamentary capacity, which is the minimum legal and mental requirement to prepare a valid Will or alter an existing Will, a will-maker must be 14 years or older and be aware of the extent of his or her property and the natural beneficiaries thereof.  Having dementia, Alzheimer’s disease, or other cognitive impairments does not preclude a will-maker from having testamentary capacity if he or she is lucid when he or she signs the Will.

2.    A Will must be a writing.   A writing can include typed, computer-printed, or holographic Wills.  A holographic Will is a document wholly in the handwriting of the will-maker.  Wills made orally and recorded on an audio-recording device or in a video medium are not valid.

3.    Signed.   The will-maker must attest to the Will’s authenticity by signing it.  If the will-maker is unable to sign his or her name, he or she may instead make an identifiable mark to sign.  If making a mark is not possible, the will-maker may direct that another person sign the will-maker’s name on his or her behalf.

4.    Properly Witnessed.  All Wills need to be witnessed by at least two disinterested individuals who must be 14 years or older and sign their own names on the Will.  Additionally, each witness must be competent to witness, which means that he or she is not a beneficiary of the Will and, if necessary, the witness is capable of testifying in a court of law regarding the facts surrounding the execution of the Will.

5.    Without Duress or Coercion.   The will-maker must freely agree to the terms of the Will he or she is signing.  Evidence of the will-maker signing the Will under duress or being coerced by an interested party will likely invalidate the Will.

6.    Notarization Not Required.   Wills do not need to be notarized to be valid.  However, a self-proving affidavit, which is a written statement signed by the will-maker and his or her witnesses in the presence of a notary that attests to the validity of the will to which it is attached, helps facilitate the probate process.

Smart estate planning lets you determine the distribution of the assets in your estate to protect your loved ones in the most efficient manner.  If you are interested in creating or updating your estate plan, we at The Becker Law Firm would be happy to help you.

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