How Do You Make a Valid Will In Georgia?

In order to make a valid will in Georgia, the testator (the person making the will), must be 14 years of age or older, and must be competent to make a will.  The will itself must be:

  1. In writing;
  2. Signed by the testator;
  3. Witnessed by two witnesses

 

Who Is Competent To Make a Valid Will In Georgia?

“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.”  GA Code § 53-4-10(a).

Testamentary Capacity

A testator must have testamentary capacity to make a valid will.  Georgia law states that testamentary capacity exists “when the testator has a decided and rational desire as to the disposition of property.”  GA Code § 53-4-11.

A person who lacks the capacity to contract may still have the capacity to create a valid will under Georgia law.

An insane person can also make a valid will if the will is done during a lucid interval.

A monomaniac (a person who is extremely interested in only one thing, often to such a degree that they are mentally ill) may also make a will if the will is no way connected with the monomania.

Finally, “[n]either advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.”

Freedom Of Volition

The second prong of competency to make a will in Georgia requires freedom of volition of the testator.  The testator must be free from undue influence or duress in making the will.  Pursuant to GA Code § 53-4-12:

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.

Testator Signature Requirement In Georgia

In order to be valid under Georgia law, the will must be signed by the testator OR by some other individual in the testator’s presence and at the testator’s express direction.  The testator can sign the will by mark or by any name that is intended to authenticate the instrument as the testator’s will.  GA Code § 53-4-20.

Two Competent Witnesses Must Also Sign the Will

Georgia law also requires that a will must be attested and subscribed by two or more competent witnesses in the presence of the testator.

Any individual who is competent to be a witness (meaning generally that they can attest to the witnessing of the will) and age 14 or older may witness a will in Georgia.  GA Code § 53-4-22.  If a witness becomes incompetent after witnessing the will, the subsequent incompetence of the witness does not prevent the probate of the will.

Does a Georgia Will Have To Be Signed In Front Of a Notary?

No, there is no requirement that in order to be valid under Georgia law that a will must be signed in front of a notary.  However, a will can be made self-proved at the time of its execution or at any time during the lifetime of the testator and the attesting witnesses by the affidavits of the testator and attesting witnesses made before a notary.

GA Code § 53-4-24 contains a general form for such a self-proving affidavit.  Making a will self-proving makes the testimony of the witnesses in the probate regarding the will unnecessary.

It is always a good idea to consult with a Georgia probate lawyer to make sure that your will is valid under Georgia law.

 

General Probate Issues