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A Hidden Danger of DIY Wills

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160804_estate_plan_300August 4, 2016.  I was recently reminded of a hidden danger when a person downloads a will form or obtains an “internet vendor” prepared will, and prints the document for it to be executed as that person’s final Last Will and Testament.

I have often mentioned the advisability of a person seeking legal advice, have given some pointers on finding an able and affordable attorney, and have mentioned the pitfalls of choosing the wrong attorney.  There are pitfalls in the Do It Yourself arena also, and I was reminded of one recently.

When a person prints out his or her own will, and is not exceedingly familiar with how it should look, or what it should contain, the simple process of printing improperly may create a situation where the document is potentially worthless – not because it is not worded properly, but because of something else.

In the case to which I refer, a person did his or her own will and, I presume, it was done properly; however, in the process of printing, something was left out – and it was obvious.  At this point, the person is deceased, so we will never know the cause.  It could have been (1) the form was wrong; (2) the document was transmitted improperly; (3) the printer was not calibrated properly; (4) the proper page size was not set; (5) the person signing dropped a page or thought it unnecessary; or (6) part was lost.  Whatever the cause, the document probably does not meet the requirements of law to be considered a valid last will and testament.

What is missing?  Two little signature lines at the bottom of a page.

The decedent in this case probably did not know the difference.  Presumably, an attorney would have spotted the problem.

Such are the dangers of preparing ones own documents, or even just printing them, for signatures.

Free law! Get the law free here!

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Throughout this site you will find references to Georgia statutes.  Attorneys pay expensive subscription services for access to the Georgia law which includes case opinions, treatises, research resources, etc.

On this site, there are references to the Georgia statutes – the laws appearing in the Georgia Code which are the laws passed by the Legislature and signed into law by the Governor.

You can look up these laws for yourself, for free, on the Georgia General Assembly web site.

Click on this link to go to the Georgia General Assembly Main Web Page.

Once there, click on the “Georgia Code” link in the left column, accept the agreement, and read the official code to your heart’s content!

Keep That Original Will!

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I sure hope he left a note where his will is!

I sure hope he left a note where his will is!

September 28, 2015.  The last few days have presented several cases in which the original last wills and testaments have been lost – or cannot be found after the maker’s death.  Please, please, please.  Do not let that happen with your original last will and testament.

After someone dies, It is necessary to file the original will with the Probate Court – not a copy, not a duplicate.  A person can have only one will.

If a person’s original last will and testament cannot be found after that person dies, then there is a presumption that the person revoked the will prior to his or her death.  That creates big problems.

Therefore, if you have taken the time to prepare your last will and testament, take the time to make sure the original is kept safe, is not lost, and that your loved ones know where to find it if something happens to you.

Your heirs, and your Probate Judge, will thank you!

In a separate post later, I’ll mention a handy way to make sure your will is safeguarded – by filing it with the Probate Court during your lifetime.  That is called filing the Last Will and Testament for “safekeeping.”  I’ll include a copy of the law in that post.

All Pop Had Was An Old Car

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car_300June 9, 2015.  Occasionally, a deceased person will leave minimal property.  Perhaps a small bank account – and a car.  And that’s about it.

I have already discussed the possibilities with regard to the small bank account.  You can read that post here.  What about the vehicle?

If certain conditions are met, one may be able to transfer the title to the vehicle without going through any procedure in Probate Court.  There is an official form which you can download from this site, valid as of the date of this post.  I will post the link shortly.

Note that this process requires an affidavit – a document under oath – which states many facts. The operative facts in the form are:

“…who at the time of his or her death was the owner of the motor vehicle described below, left no will; no application for the administration of the estate of the deceased is to be had; the estate is not indebted; and the surviving spouse, if any, and the heirs, if any, have amicably agreed among themselves upon a division of the estate that the certificate of title for said vehicle be issued to the person named below.”  (Emphasis Supplied)  (I will have another post soon about what “heirs” are.)

I have underlined certain parts of the above language because all of those facts must be present.  Note also that a copy of any will not probated must be attached (see the bottom of the form.)  Other documents must be attached also.

Please note also that if a person leaves a will, but it is not going to be probated, it still must be filed with the Probate Court in the county of residence of the deceased.  A petition to probate the will is not required; however, the will must be filed.  Note also that a will does not have any effect whatsoever until it is probated, that is, admitted to probate by the Probate Judge after a proper petition to probate is filed.

Click Here for the Vehicle Title Affidavit

Small Estate Affidavit – ?

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oath_150June 8, 2015.  Often one reads about a “Small Estate Affidavit.”  What is it?  What is the purpose of the document?  Is it filed?  Where is the form?  Etc., etc.

Actually, we do not have a “small estate affidavit” here in Georgia as an official form to be filed in the Probate Court.  Other States may have court procedures for estates under a certain amount, but we do not have such a procedure here (although there are some other procedures for estates with little assets).

OK, so there is no form, there is nothing to file in Probate Court, is there any help?

There is a statute which gives some relief if there is money in the bank or other depositary institution of a relatively small amount, and certain other conditions apply.

As of the date of this post, Official Code of Georgia Annotated, Section 7-1-239, reads as follows.  The “affidavit” is mentioned in the last paragraph.  Again, there is no official form.  Perhaps the particular bank will have its own affidavit form.  Of course, an “affidavit” means that the document is signed under oath.

Ga. Code Ann., § 7–1–239
§ 7–1–239. Payment of deposit of deceased depositor
Currentness
(a) Except as provided in subsection (b) of this Code section and in Article 8 of this chapter, whenever any person dies intestate having a deposit of not more than $10,000.00 in a financial institution, such financial institution shall be authorized to pay the proceeds of such deposit directly to the following persons:
(1) To the surviving spouse;
(2) If no surviving spouse, to the children pro rata;
(3) If no children or surviving spouse, to the father and mother pro rata; or
(4) If none of the above, then to the brothers and sisters of the decedent pro rata.
(b) Except as provided in Article 8 of this chapter, if no application for the deposit is made by any person named in subsection (a) of this Code section within 90 days from the death of the intestate depositor, the financial institution shall be authorized to apply not more than $10,000.00 of the deposit of such deceased depositor in payment of the funeral expenses and expenses of the last illness of such deceased depositor upon the receipt of itemized statements of such expenses and the affidavit of the providers of such services that the itemized statements are true and correct and have not been paid. The financial institution shall pay such expenses in the order received after the death of the depositor.
(c) Payments pursuant to subsections (a) and (b) of this Code section shall operate as a complete acquittal and discharge to the financial institution of liability from any suit, claim, or demand of whatever nature by any heir, distributee, creditor of the decedent, or any other person. Such payment is authorized to be made as provided in this Code section without the necessity of administration of the estate of the decedent or without the necessity of obtaining an order that no administration is necessary.
(d) In any case in which a deceased depositor has more than $10,000.00 on deposit in a financial institution, such financial institution shall be authorized to pay any amount up to $10,000.00 to any of the persons authorized by this Code section to receive said deposit. The payment shall only act as a full and final acquittance of liability up to the amount paid by the financial institution and shall not act as a full and final acquittance to the financial institution of all liability.
(e) Notwithstanding any other provisions of law to the contrary, when any person dies intestate as a resident of this state and any person is left in possession of moneys belonging to the decedent, which moneys do not exceed $10,000.00, such person shall deposit such moneys into a savings account in the name of the decedent in a financial institution located in the area of the decedent’s residence. Such account shall be managed in accordance with the signature contract in effect at the financial institution at the time the account is opened. Any financial institution receiving such deposits is authorized to pay the proceeds in accordance with subsections (a), (b), (c), and (d) of this Code section.
(f) As used in this Code section, the term “financial institution” includes any federally chartered financial institution.
(g) Application by any claimant or claimants entitled in this Code section to receive deposits at a financial institution shall include an affidavit by the claimant or claimants which states that they qualify as the proper relation to the decedent as specified in this Code section and that the claimant or claimants know of no other corresponding claimant or claimants to such deposit. The financial institution may rely on a properly executed affidavit in disbursing the funds according to this Code section.
Ga. Code Ann. § 7-1-239 (West)