By: John Farrell
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Are Handwritten Wills Valid in Georgia?
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Are Handwritten Wills Valid in Georgia?
Handwritten Wills are valid in Georgia but I find that many people confuse handwritten wills with holographic wills. Typically, Wills are typed, but it’s not a requirement in Georgia that a Last Will and Testament be typed. In fact, I’ve helped several families probate handwritten Wills. The mere fact that a Will is written by hand does not invalidate the Will so long as the other formalities required by law are met. Before we get into the details of handwritten Wills being valid in Georgia and why holographic Wills are not valid in Georgia, let’s discuss what a Last Will and Testament is and what makes it valid in Georgia.
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What is a Last Will and Testament?
A Last Will and Testament is a written document with instructions on how the assets of a deceased person’s assets will be distributed. This document and its provisions can only be enforced by the Probate Court. The process of the Probate Court interpreting and enforcing the provisions of a person’s Will is called the Probate Process.
Over the years, I’ve heard from people how their families were going to avoid the Probate Process because they took the time to create a Will. But a Will isn’t designed to avoid the Probate Process. Instead, a Will is designed to carry your family through the Probate Process.
We’ve discussed why you want to avoid the Probate Process in other articles and you can access one by clicking here.
What makes a Last Will and Testament valid in Georgia?
The essential elements for a valid Will in Georgia are:
- The person making the Will must be at least fourteen (14) years old. Imagine that. Someone who can’t obtain a learner’s permit to drive can make a Will.
- They must be of “sound mind.” Generally, this means they haven’t been officially declared incompetent.
- The Will must be written. Oral Wills are not valid in Georgia.
- The Will must be signed by the Testator (the person making the Will).
- The Will must be signed by two (2) witnesses.
What is the Probate Process in Georgia?
Now that we know a Last Will and Testament guides a family through the Probate Court, what is that process in Georgia? Generally, the Probate Process involves several steps but can often involve many more than those I’ve listed here. For example, if you are the Executor of an estate, you are to:
- Gather all of the assets;
- Sell assets if necessary;
- Pay all debts and expenses of administration;
- Distribute the remaining estate; and,
- Close the estate.
This is an oversimplified explanation of the Probate Process in Georgia. There may be additional steps such as filing income, estate, and other tax returns and filing inventory, returns, and other reports as required by the Probate Court. All of this can be daunting, so I will explain below ways you can avoid this process for your family.
What is the difference between a handwritten Will and a holographic Will?
Now that we know what makes a Will valid in Georgia, what is the difference between a handwritten Will and a holographic Will? In short, a holographic Will is a type of handwritten Will. A holographic Will is a Will written entirely in the handwriting of the Testator, but doesn’t have the other formalities that makes a Will valid in Georgia. For example, a holographic Will doesn’t have the signatures of two witnesses. So, while the holographic Will isn’t invalid because it is written by hand, it is invalid because it doesn’t meet the other formalities which make a Last Will and Testament valid in Georgia.
Why call it a holographic will in the first place?
If a handwritten will that doesn’t meet the requirements of Georgia is invalid, why call it a holographic Will? Why not just call it an invalid Will? Well, that’s because some states allow for holographic Wills. As an example, the state of Texas, where I am also licensed to practice law, allows for holographic Wills. The Wills in Texas do not have to be signed by witnesses in order to make them valid. This is typically done in emergency situations until a more formal Will can be created at a later time.
Georgia has made it clear that a holographic Will is not valid in Georgia. So, if someone from Texas moves to Georgia and wants to create a Will while they are here, they will not be able to create a valid Will by creating a holographic Will.
So, in summary, a handwritten Will is valid in Georgia so long as it meets the other formalities of a valid Will in Georgia, but a holographic Will is not valid in Georgia because it fails to meet Georgia legal requirements such as being signed by two (2) witnesses.
Should you have a Last Will and Testament or should you incorporate a more complex estate planning instrument such as a Living Trust?
That’s a big question. In general, everyone should have a Last Will and Testament. Regardless of who you are, whether you are young or old, rich or poor, everyone can benefit from having a Last Will and Testament. However, sometimes it makes more sense to incorporate a Living Trust into your estate plan which would also include a Last Will and Testament working together.
The Trust will typically avoid the Probate Process by removing assets from your probate estate. Don’t worry, you don’t lose the assets, they are just re-titled into the name of your Trust. That way, when you pass away, your family gets immediate access to their inheritance without having to wait for the Probate Court which could take months and years. Working with an experienced estate planning attorney is essential to discovering the benefits of a Living Trust and whether one would work for you.
To summarize, a handwritten Will is valid in Georgia as long as other formalities are met and a typed Will is better than a handwritten Will and a Living Trust is better than a handwritten Will or a typed Will in many situations.