WILLS & ESTATES

Question 1

Validity of a Will

Answer 1

To determine the validity of a will, the court will look most importantly at the intent of the maker as well as the 4 corners of the document and any surrounding circumstances.

Requirements —
1. In writing.

2. Signed (anywhere on the document by any mark with the intent to validate).
3. Must be attested to in the testator’s presence with the signatures of at least two uninterested witnesses.
   3(a). “Presence” = Within the testator’s line of sight or conscious presence.
   3(b). An “attestation clause” will presume that all of the formalities of attestation were met.
4. Testator must have had testamentary capacity.
   4(a). Must have had the “rational desire” to dispose of property and be of sound mind. Presumption in favor of capacity (low bar).
5. Testator must have had testamentary intent.
   5(b). Must have intended the document to act as a will.

Question 2

Self-Proving Will/Affidavit

Answer 2

If the testator and witnesses sign in front of a notary, the will is self-proved and the witnesses will not have to testify in probate.

Question 3

Interested Witnesses

Answer 3

A witness who is also a beneficiary can attest to the will as long as there are at least two other uninterested witnesses.

If there are two other uninterested witnesses, the gift will not be void.

If there are not two other uninterested witnesses, the will is still valid, but the devise to the interested witnesses is void.

Question 4

Choice of Law

Answer 4

The law applied is the law of where the testator was domiciled or where the will was executed.

The will is effective upon the testator’s death; not when it was executed.

Question 5

Incorporation by Reference

Answer 5

Extrinsic documents referenced in a will are incorporated by referenced if the document was in existence at the time of the execution of the will and was adequately identified with the manifest intent to incorporate.

Incorporation can validate an existing improperly executed will.

Question 6

Codicil

Answer 6

A codicil is an amendment or additional to a will, and must meet the same execution elements as a will to be valid.

If validly executed, a codicil will republish the will as of the date of the codicil.

Absent inconsistencies, a codicil will modify/add to the will instead of replace it.

A validly executed codicil can validate an invalid will if it properly incorporates it by reference.

Question 6

Subsequent Marriage

Answer 6

If the will was executed prior to the testator’s marriage and doesn’t clearly state “in contemplation of marriage”, the subsequent spouse is only entitled to recover what they would have if the deceased had died intestate, which is taken out of the residuum.

Question 7

Integration of Other Pages/Documents

Answer 7

All pages present at the time of execution are integrated into the will.

Court will consider surrounding circumstances such as if the pages were stapled, if the pages were numbers, or initials on extra pages.

Question 8

Intestacy

Answer 8

When someone dies without a will, their estate will be distributed according to state intestacy laws.

If they have a spouse, but no children = everything given to spouse.

If they have a spouse and children = the spouse and children will get equal shares of the state, with the spouse being awarded no less than 1/3 of the estate. Descendants of a deceased child are distributed per stirpes, meaning they will each equally split the decedent’s split share.

If no spouse, the estate is distributed to the nearest degree.
1. Children.
2. Parents.
3. Siblings.
4. Grandparents.
5. Aunts/Uncles.
6. If none of the above, the property escheats to the state.

Question 9

Adopted Children/Transplantation Theory

Answer 9

Georgia follows the Transplantation Theory, meaning that an adopted child loses any right to inherit from their natural parents who die intestate, unless they were adopted by a stepparent.

Adopted child acquires all inheritance rights as the natural children of their adopted parents.

“Half-blood” relatives take equally with “whole blood” relatives.

Question 10

Slayer Statutes

Answer 10

An heir who feloniously or intentionally kills the testator cannot inherit from their estate. Will serve as if the slayer predeceased the testator, with any children collecting their per stirpes share.

ALSO applies to life insurance policies!

Question 11

Non-Marital Children

Answer 11

Non-marital children can inherit from their mother, but not from their father unless the father

(1) signed their birth certificate,
(2) has an order of paternity from the court, or
(3) there is other clear and convincing evidence of paternity.

Question 12

Advancements/Ademption by Satisfaction

Answer 12

A lifetime/inter vivos transfer of property to an heir/beneficiary will be treated as an advancement if the following elements are met:

1. If the gift was intentional, and —

1(a). If the will provided for a deduction via lifetime transfer; or
1(b). There is a signed writing from the transferor within 30 days of the transfer; or
1(c). There is any written acknowledgement of the transfer being an advancement at any time by the recipient.

Question 13

Simultaneous Death

Answer 13

In general, a party must actually survive the testator to take by will or intestacy.

Georgia has adopted the original Uniform Simultaneous Death Act.

When you can’t tell who died first, the property of each is disposed of as if each decedent predeceased the other, so neither collects.

Question 14

Revocation

Answer 14

A testator can revoke at any time prior to death, either expressly or impliedly, as long as it was intentional.

The intent of the testator is the court’s highest priority!!!

If a testator has the intent to revoke, the will is thus revoked upon —
- Execution of a subsequent valid will, if the second will expressly states that the first is revoked, or is inconsistent with its terms.
- Physical act to obliterate or cancel the will, either by tearing, burning, crossing out, etc.
- The physical act must touch the material parts of the will (the physical words).
- There are no partial revocations. If one part is crossed out, the entire thing is revoked.
- Divorce. After divorce, the divorced spouse will be treated as if they predeceased the testator.

Question 15

After-Born Children

Answer 15

A will provision that provides for a class of children is presumed to include after-born children.

Otherwise, the after-born child will take their intestate share from the residuum.

Question 16

Omitted Existing Children

Answer 16

Court will look at the testator’s family at the time of execution to preserve their intent as much as possible.

Georgia only provides protection to omitted existing children if the testator believed the child was dead.

If the testator believed the child was dead and thus omitted them from the will, the child can still receive —
- Their intestate share, if there are no other children. Or,
- An equal share of the gift of the non-omitted child, if there are other children.

Question 17

Anti-Lapse Statute

Answer 17

Under common law, a gift will “lapse” (pass to the residuary) if the beneficiary predeceases the testator.

Under Georgia Anti-Lapse Statutes, when a beneficiary predeceases the testator, the beneficiary’s gift is split equally among their surviving descendants.

Question 18

Lost Wills

Answer 18

There is a rebuttable presumption that the testator had the intent to revoke their will when the original copy cannot be located.

The presumption may be overcome by a preponderance of the evidence, after which a copy may be introduced into probate.

Question 19

Interpretation of a Will

Answer 19

Georgia is more flexible than most states in interpreting a will and emphasizes the intent of the testator over a rigid focus of “plain meaning”.

“Courts shall seek diligently the intent of the testator and give effect to that intent to the extent that the law allows.”

Parol evidence is always admissible to resolve all ambiguities, whether they are latent or paten.

Question 20

Ademption by Extinction

Answer 20

If a gift in a will no longer is in the testator’s possession at the time of death, the beneficiary will not recover it unless (1) it was exactly replaced, or (2) insurance awarded proceeds for it within 6 months of the testator’s death.

Applies only to specific gifts.

Question 21

Abatement

Answer 21

If the assets of an estate are insufficient to pay creditors and make the devises in a will, unless otherwise specified, the devises in a will will be abated (reduced) in the following order —

1. Residuary,
2. General gifts,
3. Demonstrative gifts,
4. Specific gifts.

Question 22

Specific Gifts

Answer 22

Dispose of an identified item of property that the testator owned.

“My home at 123 Drury Lane.”

Question 23

Demonstrative Gifts

Answer 23

Dispose of a specific item (usually money) from a designated source.

“$100 to my Tom, paid from my Wells Fargo account.”

Question 24

General Gifts

Answer 24

Doesn’t direct the gift from a specific source, and is thus payable out of the general assets of the estate.

“$100 to Tom.”

Question 25

Residuary

Answer 25

All property of the estate that hasn’t been specifically disposed of. I.e., whatever is left in the estate after all claims against the estate are settled and all specific, demonstrative, and general gifts are made.

Question 26

Exoneration

Answer 26

Any liens on the testator’s property are NOT exonerated upon death. If real property passes to a beneficiary, the creditor can use personal property of the estate to exonerate the lien.

Question 27

Disclaimer/Renunciation

Answer 27

A beneficiary cannot be forced to accept a gift. To disclaim the gift, the beneficiary must make a written renunciation to the estate no later than 9 months after the transfer or the beneficiary turning 21.

Cannot renounce after acceptance.

Renounced property will then pass through to the residuary or via intestacy.

Renunciation acts as if the renouncer predeceased the testator.

Question 28

Personal Representative

Answer 28

The person chosen or appointed to administer the estate. Either stated in the will or, if intestate, any surviving spouse, heir, creditor, or eligible person can be appointed.

Question 29

Personal Representative Duties

Answer 29

Must act in the best interests of the estate.

Inventory all assets within 6 months of testator death.

Notice creditor within 60 days of testator death.

Satisfy all claims against the estate within 6 months.

Question 30

Contesting a Will

Answer 30

A will is invalid if it as improperly executed, or if anything destroyed the testator’s “freedom of volition.”

Someone contesting a will can do so on the grounds of (1) lack of capacity, (2) undue influence, (3) fraud, or (4) mistake.

If a contester is successful in proving that a will is invalid, it cannot be brought into probate. Thus, an invalid will is treated as if the testator died intestate.

Question 31

Undue Influence - Confidential Relationships

Answer 31

Courts will closely scrutinize any gift devised to a person who had a confidential relationship with the testator. There is a rebuttable presumption of undue influence where a beneficiary (1) had a confidential relationship with the testator, (2) actively participated in the execution of the will, and (3) wasn’t a natural object of the testator’s bounty.

Question 32

Undue Influence, in General

Answer 32

Any coercion that overpowers a testator’s free will or agency. The coercion must have been to the extent that the testator was overpowered, i.e., not mere flattery or persuasion.

If the coercion was such that the testator was merely an agent of the influencing beneficiary, the will (or parts affected) is invalid.

Courts will consider circumstantial evidence in finding undue influence.

Question 33

Fraud

Answer 33

If a beneficiary made an intentional misrepresentation to the testator upon which the testator actually believed and relied on in executing their will, the will or parts of the will may be invalid —

Fraud in the execution (deceiving the testator as to the very nature of the document they are signing) will make the entire will invalid.

Fraud in the inducement (false representations made to the testator to deceive them into drawing a will in the beneficiary’s favor) will only make the affected portions invalid.

Question 34

Property That Passes Outside of Probate

Answer 34

1. Inter vivos (lifetime) gifts.
2. Gifts causa mortis.
3. Joint tenancies or accounts with a right of survivorship.
4. Life insurance policies.
5. Trust accounts.

Question 35

Year’s Support

Answer 35

A surviving spouse and minor children are entitled to one year of maintenance. Upon petitioning the court for maintenance, the probate court should set aside 12 months worth of support from the estate that is sufficient to maintain the spouse and children according to their accustomed standard of living.

Question 36

Pour-Over Wills

Answer 36

Pour-over wills devise all of the testator’s property into a trust that was created during the testator’s lifetime.

If all property is devised to a trust, the trust will pass outside of probate and will be administered according to trust principles/laws.

Question 37

Equitable Adoption

Answer 37

Georgia limits equitable adoption to situations in which there is a contract to adopt between the natural parents and the purported “adoptive” parents, proven by clear and convincing evidence.

If the child is not legally or equitable adopted, they cannot recover from their non-natural parent’s estate.

Question 38

Step Children

Answer 38

A stepchild has no legal right to inherit from a stepparent unless they were specifically named in the will.