Wood & Meredith,
LLP. - http://www.woodandmeredith.com/ |
Relevant Provisions of the Georgia Probate Code (2008).
CODE OF GEORGIA
Title 53. WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES
Chapter 4. WILLS
Article 1. GENERAL PROVISIONS
Current through the 2006 Legislative Session
OCGA § 53-4-1. Power Of Testator.
A testator, by will, may make any disposition of property that is not inconsistent with the laws or contrary to the public policy of the state and may give all the property to strangers, to the exclusion of the testator's spouse and descendants.
OCGA § 53-4-2. When Will Takes Effect.
A will shall take effect instantly upon the death of the testator however long probate may be postponed.
OCGA § 53-4-3. Determination Whether Instrument Is Will.
No particular form is necessary to constitute a will. To determine whether an instrument is a will, the test is the intention of the maker to be gathered from the whole instrument, read in light of the surrounding circumstances. If the intention is to convey a present interest, though the possession is postponed until after death, the instrument is not a will. If the intention is to convey an interest accruing and having effect only at death, the instrument is a will.
OCGA § 53-4-10. Minimum Age; Conviction Of Crime.
(a) 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.
(b) An individual who has been convicted of a crime shall not be deprived of the power to make a will.
OCGA § 53-4-11. Decided And Rational Desire; Incapacity To Contract; Insanity; Advanced Age Or Eccentricity.
(a) Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.
(b) An incapacity to contract may coexist with the capacity to make a will.
(c) An insane individual generally may not make a will except during a lucid interval. A monomaniac may make a will if the will is in no way connected with the monomania. In all such cases, it must appear that the will expresses the wishes of the testator unbiased by the insanity or monomania with which the testator is affected.
(d) Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.
OCGA § 53-4-12. Freedom Of Volition.
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
OCGA § 53-4-20. Required Writing; Signing; Witnesses; Codicil.
(a) A will shall be in writing and shall be signed by the testator or by some other individual in the testator's presence and at the testator's express direction. A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator's will.
(b) 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. Another individual may not subscribe the name of a witness, even in that witness's presence and at that witness's direction.
(c) A codicil shall be executed by the testator and attested and subscribed by witnesses with the same formality as a will.
OCGA § 53-4-21. Knowledge Of Contents Of Will By Testator.
Knowledge of the contents of a will by the testator is necessary to the validity of a will. If the testator can read, the testator's signature or acknowledgment of that signature is presumed to show such knowledge.
OCGA § 53-4-22. Competency Of Witness.
(a) Any individual who is competent to be a witness and age 14 or over may witness a will.
(b) If a witness is competent at the time of attesting the will, the subsequent incompetence of the witness shall not prevent the probate of the will.
OCGA § 53-4-23. Testamentary Gift To Witness Or Witness's Spouse.
(a) If a subscribing witness is also a beneficiary under the will, the witness shall be competent; but the testamentary gift to the witness shall be void unless there are at least two other subscribing witnesses to the will who are not beneficiaries under the will.
(b) An individual may be a witness to a will by which a testamentary gift is given to that individual's spouse, the fact going only to the credibility of the witness.
OCGA § 53-4-24. Self-proved Will Or Codicil.
(a) At the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, a will or codicil may be made self-proved and the testimony of the witnesses in the probate regarding such will may be made unnecessary by the affidavits of the testator and the attesting witnesses made before a notary public. The affidavit and certificate provided in subsection (b) of this Code section shall be the only prerequisites of a self-proved will or codicil.
(b) The affidavit shall be evidenced by a certificate, affixed with the official seal of the notary public, that is attached or annexed to the will or codicil, in form and content substantially as follows:
STATE OF GEORGIA
COUNTY of ___________
Before me, the undersigned authority, on this day personally
appeared _______________________, ______________________, and
_______________________, known to me to be the testator and the
witnesses, respectively, whose names are subscribed to the annexed
or foregoing instrument in their respective capacities, and all of
said individuals being by me duly sworn, _______________________,
testator, declared to me and to the witnesses in my presence that
said instrument is the last will and testament or a codicil to the
last will and testament of the testator and that the testator had
willingly made and executed it as a free act and deed for the
purposes expressed therein. The witnesses, each on oath, stated
to me in the presence and hearing of the testator that the
testator had declared to them that the instrument is the
testator's last will and testament or a codicil to the testator's
last will and testament and that the testator executed the
instrument as such and wished each of them to sign it as a
witness; and under oath each witness stated further that the
witness had signed the same as witness in the presence of the
testator and at the testator's request; that the testator was 14
years of age or over and of sound mind; and that each of the
witnesses was then at least 14 years of age.
_______________________
Testator
_______________________
Witness
_______________________
Witness
Sworn to and subscribed before me by _______________________,
testator, and sworn to and subscribed before me by
_______________________ and _______________________, witnesses,
this ______ day of ______________, ____.
(SEAL)
(Signed)______________________________
(Official Capacity of Officer)
(c) A self-proved will or codicil may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently from a will or codicil that is not self-proved. In particular, without limiting the generality of the foregoing sentence, a self-proved will or codicil may be contested, revoked, or amended in exactly the same fashion as a will or codicil that is not self-proved.
OCGA § 53-4-30. Contract Concerning Succession.
A contract made on or after January 1, 1998, that obligates an individual to make a will or a testamentary disposition, not to revoke a will or a testamentary disposition, or to die intestate shall be express and shall be in a writing that is signed by the obligor.
OCGA § 53-4-31. Definitions.
(a) A joint will is one will signed by two or more testators that deals with the distribution of the property of each testator. A joint will may be probated as each testator's will.
(b) Mutual wills are separate wills of two or more testators that make reciprocal dispositions of each testator's property.
OCGA § 53-4-32. Effect Of Execution.
The execution of a joint will or of mutual wills does not create a presumption of a contract not to revoke the will or wills.
OCGA § 53-4-33. Revocation.
(a) A joint will or mutual wills may be revoked by any testator in the same manner as any other will.
(b) Revocation of a joint will or a mutual will by one of the testators shall not revoke the will of any other testator.
OCGA § 53-4-40. Power Of Testator.
A will may be changed or revoked by the testator at any time prior to the testator's death.
OCGA § 53-4-41. Intent.
In all cases of revocation, the intent to revoke is necessary.
OCGA § 53-4-42. Express Or Implied Revocation.
(a) A revocation may be express or implied.
(b) An express revocation occurs when the testator by writing or action expressly annuls a will. An express revocation takes effect instantly.
(c) An implied revocation results from the execution of a subsequent inconsistent will that does not by its terms expressly revoke the previous will. An implied revocation takes effect only when the subsequent inconsistent will becomes effective. If the subsequent inconsistent will fails to become effective from any cause, the implied revocation is not completed.
OCGA § 53-4-43. Subsequent Will Or Other Written Instrument.
An express revocation may be effected by a subsequent will or other written instrument that is executed, subscribed, and attested with the same formality as required for a will.
OCGA § 53-4-44. Destruction Or Obliteration Of Will Or Material Portion Thereof.
An express revocation may be effected by any destruction or obliteration of the will done by the testator with an intent to revoke or by another at the testator's direction. The intent to revoke shall be presumed from the obliteration or cancellation of a material portion of the will, but such presumption may be overcome by a preponderance of the evidence.
OCGA § 53-4-45. Revival Or Republication Of Previous Will.
(a) If a will or other written instrument that expressly revoked a previous will in its entirety is revoked by a later will or other written instrument, as described in Code Section 53-4-43, the previous will remains revoked unless it is revived. The previous will is revived if it appears from the terms of the later will or other written instrument that the testator intended the previous will to take effect.
(b) If a will or other written instrument that expressly revoked a previous will in its entirety is revoked by an act, as described in Code Section 53-4-44, the previous will remains revoked unless it is revived. The previous will is revived if it appears from the circumstances of the revocation of the will or other written instrument or from the testator's contemporaneous or subsequent declarations that the testator intended the previous will to take effect.
(c) If a will or other written instrument that expressly revoked or amended a previous will in part is revoked by a later will or other written instrument, as described in Code Section 53-4-43, the revoked or amended part of the previous will is revived to the extent it appears from the terms of the later will or other written instrument that the testator intended the previous will to take effect.
(d) If a will or other written instrument that expressly revoked or amended a previous will in part is revoked by an act, as described in Code Section 53-4-44, the revoked or amended part of the previous will is revived unless it is evident from the circumstances of the revocation of the will or other written instrument or from the testator's contemporaneous or subsequent declarations that the testator did not intend the revoked or amended part of the previous will to take effect as executed.
(e) If a will or other written instrument that expressly revoked a previous will in whole or in part is revoked by a later will or other written instrument, as described in Code Section 53-4-43, or by an act, as described in Code Section 53-4-44, and the previous will or any revoked or amended portion is not revived in accordance with the provisions of this Code section, the previous will may be republished in whole or in part in accordance with Code Section 53-4-50.
OCGA § 53-4-46. Presumption Of Intent.
(a) A presumption of intent to revoke arises if the original of a testator's will cannot be found to probate.
(b) A copy of a will may be offered for probate in accordance with Chapter 5 of this title in lieu of the original will if the original cannot be found to probate, provided that the copy is proved by a preponderance of the evidence to be a true copy of the original will and that the presumption of intent to revoke set forth in subsection (a) of this Code section is rebutted by a preponderance of the evidence.
OCGA § 53-4-47. Effect Of Implied Revocation.
An implied revocation extends only so far as an inconsistency exists between testamentary instruments. Any portion of a prior instrument that can stand consistently with the testamentary scheme in a subsequent instrument shall remain unrevoked.
OCGA § 53-4-48. Effect Of Testator's Marriage, Or Birth Or Adoption Of Child; Provision In Will For Class Of Children.
(a) Except as otherwise provided in Code Section 53-4-49, the marriage of the testator, the birth of a child to the testator, including a posthumous child born within ten months of the testator's death, or the adoption of a child by the testator subsequent to the making of a will in which no provision is made in contemplation of such event shall result in a revocation of the will only to the extent provided in the remainder of this Code section.
(b) A provision in a will for a class of the testator's children shall be presumed to be made in contemplation of the birth or adoption of additional members of that class, absent an indication of a contrary intent, and the mere identification in the will of children already born or adopted at the time of the execution of the will shall not defeat this presumption.
(c) If the will was made prior to an event specified in subsection (a) of this Code section, and does not contain a provision in contemplation of such an event, the subsequent spouse or child shall receive the share of the estate he or she would have received if the testator had died intestate. Such share shall be paid from the net residuum remaining after all debts and expenses of administration, including taxes, have been paid. If the residuum proves to be insufficient, then testamentary gifts shall abate in the manner provided in paragraph (b) of Code Section 53-4-63. Any bequest in the will in favor of the subsequent spouse or child shall be given effect and shall count toward the intestate share. If the bequest equals or exceeds the intestate share, then the subsequent spouse or child shall receive the bequest in lieu of the intestate share provided by this subsection.
History. Amended by 2002 Ga. Laws 968, OCGA §2, eff. 7/1/2002.
OCGA § 53-4-49. Effect Of Testator's Divorce, Annulment, Or Remarriage To Former Spouse.
All provisions of a will made prior to a testator's final divorce or the annulment of the testator's marriage in which no provision is made in contemplation of such event shall take effect as if the former spouse had predeceased the testator, and the provisions of Code Section 53-4-64 shall not apply with respect to the descendants of the former spouse who are not also descendants of the testator.
If the testator remarries the former spouse and the testator has not revoked or amended the will that was made prior to the divorce or annulment, the remarriage shall not result in the revocation of the will and the provisions of the will that were revoked solely due to the application of this Code section shall be revived.
OCGA § 53-4-50. Republication Of Revoked Will.
A revoked will may be republished by a writing executed by the testator and subscribed and attested by witnesses with the same formality required for a will.
OCGA § 53-4-55. Construction Of Wills; Intention Of Testator.
In the construction of all wills, the court shall seek diligently for the intention of the testator and shall give effect to such intention as far as it may be consistent with the rules of law.
Provided the proof of intention is clear and convincing, the court may transpose sentences or clauses, change conjunctions, and supply or delete words in cases in which a sentence or clause as it stands is unintelligible or inoperative in context.
OCGA § 53-4-56. Construction Of Wills; Parole Evidence.
In construing a will, the court may hear parol evidence of the circumstances surrounding the testator at the time of execution to explain all ambiguities, whether latent or patent.
OCGA § 53-4-57. Partial Illegality Of Will.
If a will is illegal in part, the part that is legal may be sustained; but if the whole will so constitutes one testamentary scheme that the legal portion alone cannot give effect to the testator's intention, the whole will shall fail.
OCGA § 53-4-58. Failure To Provide For Living Child Believed Dead.
If at the time of execution of the will the testator fails to provide in the will for a living child of the testator solely because the testator believes the child to be dead, the child is entitled to receive a share in the estate as follows:
(1) If the testator had no other child living at the time the will was executed, an omitted child receives a share equal in value to that which the child would have received had the testator died intestate but only to the extent that any provision in the will to or for the benefit of the surviving parent of the omitted child is not thereby reduced; or
(2) If the will contains testamentary gifts to one or more other children of the testator, an omitted child is entitled to receive the share of the estate that the child would have received had the testator included all omitted children with the children to whom testamentary gifts were made under the will and had given an equal share to each child. To the extent feasible, the interest granted an omitted child must be of the same character, whether legal or equitable, present or future, as that left to the testator's other children under the will. In satisfying the share for the omitted child, the shares of the other children shall abate ratably, preserving to the maximum extent possible the testamentary plan adopted by the testator.
OCGA § 53-4-59. Specific, Demonstrative, General, Or Residuary Testamentary Gifts.
Testamentary gifts may be specific, demonstrative, general, or residuary. A specific testamentary gift directs the delivery of property particularly designated. A demonstrative testamentary gift designates the fund or property from which the gift is to be satisfied but nevertheless is an unconditional gift of the amount or value specified. A general testamentary gift does not direct the delivery of any particular property. A residuary testamentary gift includes all the property of the estate that is not effectively disposed of by other provisions of the will.
OCGA § 53-4-60. Income, Profit, Or Increase Of Specific Testamentary Gifts.
The income, profit, or increase of specific testamentary gifts, as a general rule, goes with the gift though the time of enjoyment or vesting may be postponed.
OCGA § 53-4-61. Time At Which General Or Demonstrative Testamentary Gift Bears Interest.
(a) A general or demonstrative testamentary gift usually bears interest at the legal rate after the expiration of 12 months from the death of the testator; provided, however, that when a general or demonstrative testamentary gift is to be paid at a later time or upon a later event, it bears no interest until such time or event.
(b) The general rule described in subsection (a) of this Code section yields to the equity and necessity of a particular case if the condition of the estate as to the payment of debts and testamentary gifts is doubtful or if the fund out of which the testamentary gift is to be paid is unavailable for all the charges made upon it or if any other equitable circumstance intervenes.
OCGA § 53-4-62. Testamentary Gift To Charity.
If a testamentary gift to a charity cannot be executed in the exact manner provided by the testator, the superior court may exercise equitable powers in such a way as will as nearly as possible effectuate the intention of the testator.
OCGA § 53-4-63. Payment Of Debts Of Testator.
(a) Unless otherwise directed, the debts of the testator shall be paid out of the residuum. Unless otherwise provided in the will, a residuary gift or any part thereof, including a residuary gift to a surviving spouse in lieu of year's support, shall be deemed a gift of the net residuum or part thereof remaining after all debts and expenses of administration, including taxes, have been paid.
(b) If the residuum proves to be insufficient for the payment of the testator's debts and the expenses of administration, then general testamentary gifts shall abate pro rata to make up the deficiency.
If general testamentary gifts are insufficient, then demonstrative testamentary gifts shall abate in the same manner. If both general and demonstrative gifts are insufficient, then specific gifts shall abate in the same manner.
(c) After the estate assets in the executor's hands are exhausted, a creditor may proceed against each beneficiary for that beneficiary's pro rata share of the debts to the extent a testamentary gift has been distributed to that beneficiary.
(d) Realty and personalty shall be equally liable for the payment of debts.
(e) Unless otherwise expressly directed in the will, nothing in this Code section shall be deemed to limit any rights to reimbursement for federal estate taxes, generation-skipping transfer taxes, or any other taxes that may be available to personal representatives under federal law.
OCGA § 53-4-64. Death Of Beneficiary Before Will Executed Or Before Death Of Testator.
(a) If a beneficiary is dead when the will is executed or otherwise dies before the testator, but has any descendants living at the death of the testator, the testamentary gift, if absolute and without remainder or limitation, shall not lapse but shall vest in the descendants of the beneficiary in the same proportions as if inherited directly from the deceased beneficiary under the intestacy laws of this state.
(b) The provisions of subsection (a) of this Code section shall also apply to a testamentary gift to a class unless there appears a clear intent to the contrary.
(c) If a beneficiary is treated as having predeceased the testator due to a divorce or annulment, as provided in Code Section 53-4-49, or due to the beneficiary being responsible for the death of the testator, as provided in Code Section 53-1-5, the provisions of subsection (a) of this Code section shall apply only to vest the testamentary gift in descendants of the beneficiary who are also descendants of the testator.
OCGA § 53-4-65. Disposition Of Lapsed Or Void Testamentary Gift Of Residuum.
(a) A lapsed or void testamentary gift of realty or personalty shall become part of the residuum.
(b) A lapsed or void gift of the residuum shall be deemed a part of the share of the other residuary beneficiaries in proportion to their original shares of the residuum. If there are no other residuary beneficiaries, a lapsed or void gift of the residuum shall pass by intestacy.
OCGA § 53-4-66. Ademption Or Destruction Of Specific Testamentary Gift.
Except as provided in Code Section 53-4-67, a specific testamentary gift is adeemed or destroyed, wholly or in part, when the testator for any reason does not own the subject of such gift at death.
OCGA § 53-4-67. Exchange, Loss, Theft, Destruction, Or Condemnation Of Testamentary Gift.
(a) If the testator exchanges property which is the subject of a specific testamentary gift for other property of like character, or merely changes the investment of a fund so given, the testator's intention shall be deemed to be to substitute the one for the other, and the testamentary gift shall not fail.
(b) If, within six months prior to the testator's death, property which is the subject of a specific testamentary gift is lost, stolen, or destroyed, and if such loss, theft, or destruction is covered, wholly or in part, by insurance, the specific beneficiary has the right to any proceeds of such insurance that are unpaid at the testator's death or, if any such proceeds have been paid prior to the testator's death, to a pecuniary gift equal to the amount of the proceeds so paid. The foregoing provisions shall also apply if the property is damaged but not destroyed, except that the amount of the insurance proceeds or the pecuniary gift to be paid to the specific beneficiary shall be reduced by the cost of any repairs made to the damaged property by the testator or the testator's personal representative.
(c) If, within six months prior to the testator's death, property which is the subject of a specific testamentary gift is taken by condemnation, the beneficiary has the right to any award for such condemnation unpaid at the testator's death or, if any such award has been paid prior to the testator's death, to a pecuniary gift equal to the amount of the award so paid.
OCGA § 53-4-68. Conditions That Are Impossible, Illegal, Or Against Public Policy; Conditions In Terrorem.
(a) Conditions in a will that are impossible, illegal, or against public policy shall be void.
(b) A condition in terrorem shall be void unless there is a direction in the will as to the disposition of the property if the condition in terrorem is violated, in which event the direction in the will shall be carried out.
OCGA § 53-4-69. Election By Beneficiary With Claim Adverse To Will.
A beneficiary taking under a will shall allow all the provisions of the will to be executed as far as the beneficiary can. A beneficiary who has a claim adverse to the will shall be required to elect whether to claim under the will or against it. However, the mere fact that the beneficiary is also a creditor shall not necessitate an election.
OCGA § 53-4-70. Election By Beneficiary Owning Testamentary Gift Of Property.
(a) When a testator has attempted to make a testamentary gift of property that is not the testator's own and has also given a benefit to a person to whom the property belongs, the person shall elect to take either under the will or against the will.
(b) An election pursuant to subsection (a) of this Code section shall not be required if:
(1) The will itself, from other causes, is not effective in passing title to the property in question;
(2) The testator has an interest in the property in question upon which the will may operate;
(3) The testamentary gift shows that the testator intended to give the property only in the event that the testator's own title was good; or
(4) The benefit given to the person called upon to elect is not from the testator's own property but is by virtue of a power of appointment in the testator.
OCGA § 53-4-71. Compensation To Defeated Beneficiary Electing Against Will.
If, pursuant to Code Sections 53-4-69 and 53-4-70, an election is made against the will, the defeated beneficiary shall be entitled to compensation out of the property bequeathed to the person who made the election, up to the value of the defeated testamentary gift.
OCGA § 53-4-72. Passing Of After-acquired Property.
All property owned by the testator at death that was acquired subsequent to the making of a will shall pass under the will if the provisions of the will are sufficiently broad to embrace the property.
OCGA § 53-4-73. Disposition Of Heart Pacemakers.
(a) Any individual who is 18 years of age or older and of sound mind may provide for the sale by contract or by will of a heart pacemaker implanted within the individual, such disposition to be made at death. If the sale is by will, it shall be effective without probate.
(b) When individuals in prior classes are not available at the time of death of an individual having a heart pacemaker and in the absence of a disposition contract or will, actual notice of contrary indications by the decedent, and actual opposition by a member of the same or a prior class, any of the following individuals, in order of priority stated, may sell the heart pacemaker:
(1) The spouse;
(2) An adult son or daughter;
(3) Either parent;
(4) An adult brother or sister;
(5) A guardian of the person of the decedent at the time of the decedent's death other than a guardian ad litem appointed for such purpose; or
(6) Any other person authorized or under obligation to dispose of the body.
(c) If a buyer has actual notice of contrary indications by the decedent or actual notice that a sale by a member of a class is opposed by a member of the same or a prior class, no valid sale may be made. The persons authorized by subsection (b) of this Code section may make the sale only after the time of death of the individual having the heart pacemaker.
(d) Unless otherwise provided in a will or contract, all proceeds from sales under this Code section shall be added to the estate of the decedent.
(e) Sales of pacemakers under this Code section shall be subject to:
(1) Medical acceptability of the heart pacemaker for reuse; and
(2) The laws of this state relating to autopsies.
(f) This Code section shall not apply to the sale or gift of a nuclear-powered pacemaker.
OCGA § 53-4-74. Pecuniary Marital Deduction Testamentary Gift Or Transfer.
(a) As used in this Code section, the term "marital deduction testamentary gift or transfer" means a testamentary gift or transfer of assets, including cash, which qualifies for the federal estate tax marital deduction.
(b) Where a will or trust agreement authorizes or requires an executor, administrator, or trustee to satisfy a pecuniary marital deduction testamentary gift or transfer wholly or partly by a distribution of assets in kind at values which are finally determined for federal estate tax purposes or at values which are determined by reference to such federal estate tax valuation, the executor, administrator, or trustee, in satisfaction of the pecuniary marital deduction bequest or transfer, shall distribute assets, including cash, which shall have an aggregate fair market value fairly representative of the distributee's proportionate share of the appreciation or depreciation, from the date or dates of federal estate tax valuation to the date or dates of distribution in satisfaction of the pecuniary marital deduction bequest or transfer.
Wood & Meredith,
LLP. - http://www.woodandmeredith.com/ |