How A Will In Georgia Could Be Challenged In Probate Court And How To Proactively Plan To Avoid Such Challenges
The last thing anyone who has created a will in Georgia wants is to have the will they so carefully created to be contested.
By law, though, a will in Georgia – or in any state – can be contested.
It happens every day. A loved one dies. Someone expects they will be included in the loved one’s will. But much to that person’s surprise, they find out they have been completely left out of said will. In some cases, while someone may not be completely left out, they may not have inherited what they were expecting. The last thing anyone who has created a will wants is to have the will they so carefully created to be contested. By law, though, a will can be contested.
Five Reasons For Challenging Or Contesting A Will
There are very specific reasons that allow a will to be contested. Whoever decides to contest a will must prove that the person who created the will intended something other than what ended up in the will. It’s costly to contest a will. In Georgia, the costs can range from $10,000 to $50,000 and more depending on the size of the estate. You’ll want to make sure that it will be worth it. The stakes are going to be high financially and emotionally as probate can be delayed for years and relationships can be destroyed when a will is contested.
The five points listed below are legally recognized reasons for challenging the validity of a will.
- Mental Capacity: A will can be contested based on mental capacity. The person contesting must show that the testator – the person who created the will – exhibited signs of Alzheimer’s, dementia, mental illness, or was under the influence of drugs and alcohol at the time of signing the will. Neither age nor feebleness of the testator will be enough to prove a lack of capacity when signing a will.
- Fraud: This can only be proved if you can show the testator had and was deceived by fraudulent representation when the will was signed. Even if there is evidence of or a motive for fraud – without actual proof the supposed fraud made the testator create provisions in the will – it is not sufficient to invalidate the will.
- Undue influence: A will can be overturned if the person contesting proves that the testator was under undue influence like coercion and duress at the time of the will’s signing.
- Improper execution: Every state, including Georgia, has strict requirements for the execution of a valid will. In Georgia, one such requirement is the signatures of at least two witnesses. You may want to seek the help of a notary, too. A will is not valid unless it adheres to state requirements.
- Revocation by Creation of a New Will: A later execution of a will. The most recently executed will revokes all prior wills. This is the general rule of thumb unless the testator lacks capacity, is under fraud, or is being subject to undue influence when the will is signed.
How To Avoid Having Your Will Challenged
Avoiding a challenge to your will can be accomplished in a couple of ways. The most important thing is to make sure your will is executed properly and that you take all the precautions your attorney suggests. If you are comfortable discussing these things with your loved ones, it’s a good idea to do so while you are alive and lucid. This can preclude any surprises and give your heirs the chance to talk things over with you and understand your reasoning.
Another way to prevent someone from challenging your will is to avoid having a will altogether. Instead, you could have a revocable living trust which allows you to place your assets into a trust during your lifetime. You continue to use and spend your assets and money, but they are technically owned by the trust. Upon your death, the assets are distributed to your trust beneficiaries according to the terms of the trust.
A trust does not pass through the court for the probate process and cannot be contested in most cases. Another good thing about a revocable living trust is that the details are private. If someone is not listed in the trust, they are not privy to the details of it.
When You’re Ready To Create A Will Or A Trust
Creating trusts and wills is the foundational focus of our firm, The Estate & Asset Protection Law Firm. We are here to help you establish either a will or a trust that will be properly executed to avoid being challenged. Give us a call at 404-370-0696. If you are thinking about it, it’s the right time to act. We never know how life is going to unfold and it’s always better to be prepared than to be caught off guard.
Looking to find an experienced estate lawyer in the Georgia area who is skilled in asset protection and estate plan preparation? Shannon Pawley is an attorney in Georgia with expertise in estate planning and asset protection. Shannon can provide assistance with creating an estate plan to include making a will and how to establish a trust properly. If you have questions about asset protection or questions about making an estate plan, reach out to Shannon and she will be glad to help answer all the estate planning questions you might have!