Estate Planning in Georgia: Wills, Trusts, Powers of Attorney and Probate
Georgia levies no estate tax, so a Georgia plan turns on three things: signing documents the way the Code requires, keeping assets out of a probate court file where that makes sense, and naming someone who can act if you cannot.
Aaron Bedy, Of Counsel, is admitted to practice in Georgia and in Florida, and estate planning is one of his listed practice areas. We have no Georgia office; Georgia clients are served through Mr. Bedy.
What Georgia requires, and where plans go wrong
A Georgia will must be in writing, signed by the testator, and attested and subscribed in the testator's presence by two or more competent witnesses (O.C.G.A. 53-4-20). A self-proving affidavit signed before a notary lets the court admit the will without witness testimony, though a self-proved will can still be contested (53-4-24). The probate court of your county of domicile has exclusive jurisdiction over probate (53-5-1). In a solemn-form probate, known heirs who live in Georgia are served personally at least 30 days before probate (53-5-22), and the order becomes conclusive against everyone 6 months after entry (53-5-20).
A surviving spouse and minor children may petition for year's support, a 12-month allowance preferred ahead of other debts of the estate (53-3-1). Since January 1, 2021, a no-contest clause cannot be enforced against someone who sues to interpret or enforce the instrument, seeks an accounting or removal of a fiduciary, or settles, and it is void unless the instrument says where the property goes if the clause is triggered (53-4-68; 53-12-22 for trusts).
A revocable trust avoids probate only for what it owns. Georgia requires a transfer of legal title to the trustee, and when a transferor is a trustee the deed must also be recorded (53-12-25). The power to revoke or modify must be reserved in the trust, and any change must be in writing and signed (53-12-40). The trust remains reachable by your creditors while you live (53-12-82). A Georgia power of attorney is durable unless it says otherwise (10-6B-4); it must be signed by the principal, attested by a witness who is not an agent, and attested by a second person under 44-2-15 who is also not an agent (10-6B-5).
Wills and Codicils
Drafting with the two-witness attestation and self-proving affidavit Georgia probate expects, and updating documents signed elsewhere.
Revocable Trusts and Funding
Trusts drafted to reserve the power to amend, with deeds and account retitling completed so the trustee actually holds title.
Powers of Attorney and Probate
Durable powers of attorney executed to 10-6B-5, plus probate petitions, service on heirs, year's support and trustee reporting (53-12-243).
How many witnesses does a Georgia will need?
Two or more competent witnesses who attest and subscribe in your presence (53-4-20). A handwritten will without attesting witnesses does not meet the statute, however clearly it states your wishes.
Does Georgia have a state estate tax?
Georgia levies no estate tax and requires no state estate tax return on and after July 1, 2014 (48-12-1). The federal estate tax is a separate question under federal law.
What happens if I die without a will in Georgia?
Your spouse takes everything if you leave no children or other descendants. With children, your spouse shares equally with them but never gets less than one-third (53-2-1). Your spouse and minor children can also petition for year's support (53-3-1).
How do I avoid probate in Georgia?
Title your assets to the trustee of a signed, funded revocable trust: legal title has to move to the trustee, and if you are also the trustee, the deed for real estate must be recorded (53-12-20, 53-12-25). Assets left in your own name still go through probate, and the trust does not shield assets from your creditors during your life (53-12-82).
Facing an estate planning question in Georgia?
The first consultation is confidential, and we respond within one business day. Tell us about your family and your property, and we will tell you what Georgia law does with them.