FAQs
Frequently Asked Questions
We understand that legal questions can be intimidating — which is why we've compiled the questions we are most frequently asked and made them available here for easy access. If your question is not answered below, we encourage you to call us directly for a consultation at 678-992-2631.
- Q:What is a will?
- A:A will is a person's expressed intention of what should be done with his or her property after he or she dies.
- Q:Can a will be changed?
- A:
Yes, if the testator (the person who wrote and executed the will in effect) is competent. A new will, or a "codicil," can be executed to create a new plan for dispensing the property in question.
State law can change a will also. This is commonly done when there has been a divorce. Following a divorce, the ex-spouse's rights under a will are usually terminated, unless a contrary intent is clearly shown. (FYI, separation won't terminate a spouse's rights under a will.) The specific impact of divorce on an existing will depends entirely on state law. Birth, adoption or a new marriage will also cause your will to become void. - Q:Can I appoint a guardian for my children in my will?
- A:Yes. This is another valuable benefit of having a will. However, a court is not bound by your will's request to name that person the guardian of your children. The court will closely consider your request, and your will is often the only way to make these wishes known after you've died.
- Q:Can I dispose of my property in any way I wish?
- A:Yes, for the most part. However, if you indicate that all of your property should be collected and burned, the law might not give effect to that part of your will. In addition, you won't be able to avoid protections given to others by law. This can include your spouse's rights against the estate, community property protections and special protections for children.
- Q:Can more than one person be named as personal representative?
- A:
Yes. You may appoint co-representatives or a secondary representative — but this may create problems during probate. Normally, they will have the same powers to act, and this can create conflict. The nomination of two or more executors/representatives should be carefully considered.
Appointing co-representatives might be an emotional reaction, i.e. you don't want to hurt someone's feelings. However, an emotional reaction is often not the best choice for a legal situation. If you nominate co-representatives, you need to believe that they will be able to cooperate in handling the estate. - Q:Does the personal representative have to live in the decedent's state?
- A:No, but trips to probate court might make it expensive and cumbersome for your representative. It is common to appoint someone in state and one who has business training.
- Q:How can a person contest a will?
- A:
A person contests a will by filing the relevant documents with the probate court. The person normally must be "interested." That is, he or she must be an heir under the will or at law. Also, there are time limits for contesting a will.
You must have grounds to be eligible to contest a will. Unhappiness with the proposed distribution of property is not a valid ground. Valid grounds depend on state law. Incapacity, fraud, undue influence and duress are the most common grounds.
- Q:Is joint tenancy a substitute for a will?
- A:
A joint tenancy with right of survivorship is a method of owning property with another person. At the death of one owner, the other owner becomes the full owner of the property. The property isn't part of the decedent's estate, and therefore it won't go into probate. There are tax implications and simple ownership issues for a joint tenancy.
A joint tenancy is not the equivalent of a will, which can do a number of other things. A joint tenancy creates a situation where the other tenant will get the whole property at the decedent's death. But if you give your brother Fred an interest in a joint tenancy on your home, Fred could sell his interest or his creditors could go after his interest. - Q:Must the will be read to the family?
- A:No. This is a Hollywood myth. The representative of the estate normally must provide notice of probate to all interested parties, who will then receive a copy of the will when it is filed with the probate court. Interested parties may obtain a copy from the probate court. A "reading of the will" is used in movies to create drama, like when the decedent disinherits his wife and children and leaves everything to his mistress — which is just about impossible to do in real life.
- Q:Should I leave a separate list disposing of personal property?
- A:Georgia requires that all distributions be made in the style of a formal will.
- Q:What are the duties and obligations of the executor or personal representative?
- A:
A representative is charged with following state law in wrapping up the decedent's affairs. This includes:
- Giving all proper notices to the proper parties
- Collecting all the decedent's property
- Receiving claims against the estate
- Paying just claims and disputing others
- Distributing the estate property according to the will or state law
- Q:What are the requirements for a will?
- A:Commonly, the will must be in writing, signed by the person whose will it is (the testator), and witnessed by at least two persons. The testator normally must have reached the age of 14 and must be of "sound mind" at the time the will is executed. The witnesses are usually required to be "uninterested" parties, meaning they should not be beneficiaries of the will. Witnesses must also be "competent" persons.
- Q:What happens if you die without a will?
- A:
State law has a default will for any person who dies without a will. Commonly, the spouse and children of the decedent will take the property. In the event there is no spouse or children, the decedent's parents will take the property, then siblings, grandparents and children of the grandparents. If no close relation can be found, the property will eventually belong to the state.
As part of the probate process, creditors of the decedent are entitled to first claim of the estate property, after certain allowances for a spouse and children. - Q:What is a personal representative?
- A:The person who represents the estate is called several different things, depending on state law. Traditionally, the person appointed by a will to represent the estate is called the executor (or executrix, if female). A person appointed by a court to represent the estate of a person who doesn't have a will is called a personal representative, or administrator.
- Q:When should I make a will?
- A:If you are of "sound mind," over the age and 14 and currently do not have a will, you should make a will today. No one knows what tomorrow holds, and it's important to ensure that the people you care about are protected in the event of your passing. If you already have a will, you should review your estate plan occasionally — especially after certain events, such as marriage, divorce and winning the lottery.
- Q:Who needs a will?
- A:
Since almost everyone dies possessing property, almost everyone needs a will. If you don't have one, state law will decide what happens to your estate's property. While the court will attempt to distribute your property according to what most people want, it doesn't always work that way, and the default plan usually distributes property to relatives.
Someone who leaves behind a girlfriend, boyfriend or even a fiancé will not be able to provide them with any inheritance unless there is a valid will. There is almost no exception in law to provide otherwise. - Q:Who should draft my will?
- A:
Only an attorney can legally draft a will for a person, unless a person drafts his or her own will. Personally drafted wills are often incomplete, and therefore invalid under state law. An invalid will is worthless.
Kits for writing a will are normally not state-specific. If your will fails to follow state law, it will be invalid. - Q:Why must an estate go through court?
- A:
The court oversees the probate so that the decedent's affairs can be concluded legally. If there is real property, someone will need legal authority to transfer property to any heir. If the estate is producing income, taxes will have to be paid. Creditors are paid from the estate property.
Many states have provisions for an "informal probate," which greatly reduces the required interaction with the court — but doesn't eliminate it entirely. Almost every estate will have a piece of property that passes by title or deed, like a car or real property, and in most cases only someone with legal authority can legally transfer such property. - Q:Should I consider "Internet Wills" or "Will Kits"?
- A:
Internet Wills, Will Kits or pre-printed forms are one-size-fits-all. Life is rarely that simple. Wills should be tailored to meet each individual's particular circumstance. In addition, for no additional cost, The Broome Law Firm, LLC also discusses the necessity of other elements of an estate plan: living wills, health care power of attorney or general powers of attorney. These documents can assist you and your family if you become disabled.
Still have questions? Call Barry D. Broome, Counselor at Law, directly at:
