Do my wife and I need a lawyer to write a will? (Georgia, USA)

January 9, 2004 4:48 AM

Not only am I not a lawyer, I don't have one, either.

Do I need one for my wife and I to write a simple will, mostly to specify who should take care of our daughter in case of mutual demise? We live in Georgia, US.

Yes, I know... I should ask a lawyer...
posted by jpburns to law & government (18 comments total)

NOLO should help you find out.
posted by amberglow at 5:27 AM on January 9, 2004

i think they sell "will kits". maybe at a bookstore or software store. i don't think you need a lawyer to make it legal. anyway, the kit will tell you what to do - perhaps get it notarized or something.
posted by centrs at 5:40 AM on January 9, 2004

You should be fine writing it yourself.

You are also correct that it is always best to speak to a local lawyer... you may find one that does wills for $50 or something.

I am not entirely sure about Georgia statutory law, but I'd suspect that it is like the majority of states which will take any evidence of a will in consideration in probate of an estate. Hell, a will on a cocktail napkin is sufficient assuming there is no contestation during probate.

It also gets tricky if you have another pre-existing will that conflicts with the one that you are trying to make. If that isn't a consideration, then you can probably do just fine with buying one of those "kits" and do-it-yourself.

Like I said, almost anything will do, but to do it proper, I'd follow a particular form for your state. Getting it witnessed and notarized is a plus.

And just in case that everything does get messed up, always remember that even if you die without a will, then intestate succession will pass your estate down so that your children are taken care of when you part.
posted by Seth at 6:13 AM on January 9, 2004

You need to go see a lawyer. Most lawyers don't charge an arm and a leg for such a service and you can be assured that everything will be done properly. You care about your family enough to have things set up in the case you die, why would you *not* want a professional involved?
posted by eastlakestandard at 6:38 AM on January 9, 2004

Well, yeah, you can't go wrong having it done by a professional. But writing a simple will is really not difficult for anyone with a modicum of intelligence and an ability to comprehend a couple the many books on the subject.

And the next time you have friends over, get it witnessed.

What is difficult is reaching an agreement on who raises the kids if you both snuff it, and how you'll divide your estate if your entire immediate family goes. Jolly thoughts, difficult choices. But ones you have to make irrespective of who drafts the document.

Oh, and once you get into tax/estate planning you absolutely need a pro.
posted by mojohand at 7:22 AM on January 9, 2004

Found this about preparing a will. It's a little vague, though.
posted by Karmakaze at 7:42 AM on January 9, 2004

Oh, and once you get into tax/estate planning you absolutely need a pro.

I respectfully disagree. If one has no children from prior marriages, then planning one's estate can be pretty simple. The vast majority of attorneys simply cut and paste the names in an existing form-- and there's no reason to pay them $2000-$5000 to do it for you. Furthermore, I've seen attorneys make extremely costly mistakes-- telling clients to name trusts as IRA beneficiaries, for example. There is no substitute for self-education here, and there are scores of books to help you.

I don't want to derail the thread, and to answer your original question, jpburns:

The main purpose of a will is to give the state or your executor/administrator instructions for the disbursement of your personal property. The most important thing you can do, financially, is to register assets so that they will not be probated-- in other words, let their settlement be managed between the beneficiaries you name and the financial institution that holds the assets. Most people don't realize that if you have your kids listed as your beneficiaries on your IRA, but your will names your wife, that the institution will give the money to the kids, no matter what the will says. Make sure your IRAs and other defined contribution accounts have beneficiaries, both primary and contingent. Most banks and brokerages also offer this feature (a Transfer On Death registration, or Designated Beneficiary Agreement) for non-deferred accounts as well. If yours do not, find a new institution.

Most cities have document mills that will sell you a prototype will or A/B trust for $200-300. Also, I would suggest a health-care proxy for you and your partner (if applicable).
posted by trharlan at 7:54 AM on January 9, 2004

it can be super easy depending on which state you live in, or if you live anywhere in canada... my father left behind a "holographic" will, meaning it was written, dated, and signed in his own handwriting, requiring no witnesses. not only was it that simple, being that he was an eccentric jazz musician he wrote it out on musical staff paper. all totally legal, and as sole beneficiary and executrix i had not one single problem presenting to lawyers, banks, etc., what seemed to me a wholly informal document.

i wouldn't recommend it to most people tho' as i believe the holographic will can be more easily contested if the date of it's writing is too close to the date of your death - if you have any family dynamics which are less than perfect you wouldn't want to set your heirs up for any grief. but if they're legal in your state i think it's a good idea to just draft one up between the 2 of you to have on hand while you go about the business of making a statutory will (one drawn up by lawyers).
posted by t r a c y at 8:26 AM on January 9, 2004

I would recommend a trip to the local library. Most nicely-stocked public libraries have "do it yourself" books on the shelves, with the laws for each state. Believe me, it's easier than you think.
posted by bradth27 at 8:35 AM on January 9, 2004

No no no no no no: you HAVE to see a lawyer. Listen to me, I'm in law school, I did wills all last semester at Atlanta Legal Aid. There is so much opportunity for messing up, even just a little bit, and such a mistake can sabotage your plans. See a lawyer. Seriously. See one.
posted by adrober at 8:56 AM on January 9, 2004

To summarize, the answer is: Yes, and No.
posted by luser at 9:08 AM on January 9, 2004

I did my own will and living will last year using software called Willmaker. It was basically a fill in the blanks type of deal and I am unlikely to be requesting anything that is disputable, so I am not concerned. HOWEVER, adrober is correct in that if you screw up a will and there is some dispute or disagreement about what you intended to happen to your estate, your relatives or beneficiaries could be in a world of hurt. Read this and see if you feel like you need a lawyer.
posted by jessamyn at 11:12 AM on January 9, 2004

Follow adrober's advice, and see a lawyer. I'm also in law school, and it seems that we've covered countless cases of botched wills that ended up in the courts. BTW, I'm pretty sure that the holographic wills that tracy mentions aren't allowed in Georgia.

Also, is a will even the correct legal instrument to determine custody of children?
posted by reverendX at 1:04 PM on January 9, 2004

Also, is a will even the correct legal instrument to determine custody of children?

Not custody, but a guardian can be nominated in a will (at least in my state).
posted by eastlakestandard at 1:54 PM on January 9, 2004

I'm also in law school... is a will even the correct legal instrument to determine custody of children?

It sure is.

On preview, eastlakestandard makes an important semantic distinction.
posted by trharlan at 1:56 PM on January 9, 2004

The law school people WANT you to see a lawyer, because it furthers their profession, and gives fresh out-of-school kids something to do to gain experience that they can't screw up. There's absolutely nothing wrong with that. But there's no substitute for going into a lawyer being at least somewhat informed of your options. And basic wills can be done by paralegals, and often are in legal aid clinics.

If you have to see a lawyer, do shop around. Price isn't the only thing, but it should certainly be a factor along with demeanor, experience, and general competence. reading a few books in the library and drafting something up for a lawyer to review. If price is an object, and with lawyers it usually is, contacting the local legal aid society and/or the local law school should be your second step after reading a Nolo book on the subject. Do not, I repeat, do NOT go to the phone book and pick out a lawyer from the book! And the bar's legal referral service is only marginally better.
posted by calwatch at 4:40 PM on January 9, 2004

The law school people WANT you to see a lawyer, because it furthers their profession

Absolutely not true! Its because they've seen the problems an amateur can cause their loved ones just because they want to save a buck.

It never ceases to amaze me at the stubborness some people have when it comes to admitting that at some point they might have legal issues in their life and GASP might have to pay an attorney for help.
posted by eastlakestandard at 1:33 PM on January 10, 2004

Please. I'm suggesting people do their homework and ask around. They may not need a lawyer for their needs, and the Nolo books are generally extremely good at differentiating what requires trained legal advice and what can be obtained from a book.
posted by calwatch at 8:59 PM on January 12, 2004