Your will has just been drafted. What do you do now? The following is a list of do’s and don’ts to help ensure that your will is valid and ready to serve as a critical component of your estate plan.
1. CHECK YOUR WILL. Read your will carefully. Check your will for accuracy (especially names and numbers) and make sure you understand everything. Contact your attorney if you find an error or if you have any questions.
2. EXECUTION FORMALITIES. In order to make your will valid, you need to do the following:
- Find two witnesses and a notary. The witnesses must be someone other than the notary. The witnesses must be at least 14 years old and mentally competent. The witnesses must be disinterested – neither the witnesses nor their spouses should receive anything in the will. You should not use your spouse, children, or any other family members as witnesses.
- Execute your will. While in the simultaneous presence of your two witnesses and notary, verbally acknowledge that this is your will. Then, sign and date the will. Have your two witnesses sign the will.
- Complete and notarize the self-proving affidavit. Although this step is not essential to make your will valid, it is highly recommended. You and your witnesses should follow the notary’s instructions for signing and completing the self-proving affidavit.
3. KEEP YOUR WILL SAFE. Keep your original signed will in a safe but accessible place, such as a fireproof box in your home. You should notify your executor of the location of the will and make sure that he or she has access. To avoid confusion, you may want to destroy any old wills. Although you may make and distribute copies of your signed will for reference to loved ones, if your original signed will cannot be found upon your death, the probate court may question as to whether you intentionally destroyed your original will, and therefore, may not accept a copy of your will.
4. NON-PROBATE PROPERTY. Your will only governs your probate property. You should be aware that non-probate property is not subject to your will. Non-probate property includes any joint accounts (such as a joint bank account in your name and your spouse’s name), accounts or policies which have a pay-on-death or transfer-on-death designation (common with bank accounts, retirement accounts, and life insurance), property which you own as a joint tenancy with a right of survivorship (common with real estate owned by married couples), and trust property. You should take a complete inventory of all of your property, identify any non-probate property, and determine whether you want to make any changes. For example, you may wish to contact your bank to change your pay-on-death or transfer-on-death designations. If you want to make any changes to real estate ownership, you should contact a real estate attorney.
5. LISTS & LETTERS. To assist your executor, you should consider making a comprehensive list of all of your property (inclusive of account numbers and other identifying information) and a contact list of your beneficiaries. You may also want to write one or more letters to express your parting words and any wishes in connection with gifts or guardianship. Store these documents in a safe place beside your original signed will. Please note that your will governs the distribution of your probate property; any other documents included with your will are non-binding.
6. OTHER INSTRUMENTS. Your will is perhaps the most important part of your estate plan, however, it only goes into effect after you die. What if you were alive but you lacked the capacity to make decisions for yourself? To prepare for this possibility, you may want to consider two additional instruments which would empower your most trusted loved ones to make decisions on your behalf. These are:
- Durable Power of Attorney. This enables you to appoint an agent to make financial decisions on your behalf.
- Healthcare Advanced Directive. This enables you to state your treatment preferences, appoint an agent to carry out or make healthcare decisions on your behalf, and nominate a person to be your guardian should one ever be needed.
7. UPDATING YOUR WILL. You should update your will if any of the following occur:
- When you have any major life changes, including:
- When you marry or divorce
- The birth of a child
- The death of a child, spouse, or any intended beneficiary
- If you move to a different state
- If your tax situation changes (for example, if the estate tax becomes a concern)
- If you want to add or remove any beneficiaries or change any gifts in your will
- IMPORTANT NOTE: If you want to update your will, DO NOT cross out or modify the existing text. Under Georgia law, you are required to go through the execution formalities for any update to your will. If you want to update your will, you should contact an attorney to ensure that the new will or a will amendment (codicil) is legally valid.
- When you have any major life changes, including:
8. DO NOT TAMPER WITH YOUR WILL. You should avoid doing anything that may cause people to suspect that your will was tampered with – even merely removing staples from your will may cause people to contest the will after you die. For added security, you may wish to put your original signed will in an envelope with a tamper-proof seal.