WHO CAN MAKE A WILL? State laws vary but generally provide that a person must be at least 18 years of age to execute a Will. Some states provide that a person 16 years old may execute a will. Georgia law provides that a person age 14 may execute a will.

HOW IS A WILL SIGNED PROPERLY? Again, state laws vary. Most require two witnesses. Your best option is to read the Will attestation clause on the will for your state and comply with what it states. In most states, the execution is proper if the maker signs the Will in the presence of both witnesses, declares that he signed it and requests that the witnesses witness his or her signature and the witnesses sign in his presence and in the presence of each other. Most laws also provide that the witnesses not be heirs or interested in the estate.

DO I FILE THE WILL? State laws do not require that the will be filed and most do not have a procedure for filing Wills prior to death. In those states that do allow a Will to be filed prior to death, most are filed with the probate clerk or recorder of documents.

WHAT PROPERTY PASSES BY WILL? All your property will pass by your will except property which is to vest in others by other instruments. Examples are:

  1. Real estate in some states that is owned by joint tenants passes to the survivor
with or without a Will and
  • Life insurance proceeds go to the named beneficiary.


  1. Names of the persons you desire to inherit part or all of your estate.
  2. Trustee of the trust contained in your will if your children are minor children.
  3. Guardian of minor children in case both parents are deceased.
  4. Executor or personal representative to administer your estate.
  5. Generally how you desire your estate to be administered and who is to receive same.


  1. Testator - a person who dies leaving a will.
  2. Executor - a person named by a testator to execute or carry out the instructions in a will.
  3. Guardian of minor children in case both parents are deceased.
  4. Executor or personal representative to administer your estate.
  5. Generally how you desire your estate to be administered and who is to receive same.
  6. Devise - to give (property) by will. specifically: to give (real property) by will.
  7. Bequeath - to give by will (used especially in referring to personal property but sometimes to real property).
  8. Beneficiary - a person or entity (as a charity or estate) that receives a benefit from something: as the person or entity named or otherwise entitled to receive the principal or income or both from a trust.
  9. Probate - to establish (a will) as valid through probate.
  10. Maker - Person who makes a will.


What is a Trust?

A Trust is an entity which owns assets for the benefit of a third person (beneficiary). A Living Trust is an effective way to provide lifetime and after-death property management and estate planning. When you set up a Living Trust, you are the Grantor; anyone you name within the Trust who will benefit from the assets in the Trust is a beneficiary. In addition to being the Grantor, you can also serve as your own Trustee (Original Trustee). As the Original Trustee, you can transfer legal ownership of your property to the Trust. This can save your estate from estate taxes when you die. Just remember that it does not alleviate your current income tax obligations.

What is an Irrevocable Trust? A trust created during the maker's lifetime that does not allow the maker to change it.

What is a Revocable Trust? A trust that can be amended and revoked, usually by the person who established the trust. This trust may become irrevocable and unamendable when the only person who can amend or revoke the trust dies or becomes incompetent.

What is a Living Trust? A living trust is a trust established during a person's lifetime in which a person's assets and property are placed within the trust, usually for the purpose of estate planning. The trust then owns and manages the property held by the trust through a trustee for the benefit of a named beneficiary, usually the creator of the trust (settlor). The settlor, trustee and beneficiary may all be the same person. In this way, a person may set up a trust with his or her own assets and maintain complete control and management of the assets by acting as his or her own trustee. Upon the death of the person who created the trust, the property of the trust does not go through probate proceedings, but rather passes according to provisions of the trust as set up by the creator of the trust.

Will a Living Trust avoid probate? Perhaps the biggest advantage of a living trust is that it does not have to go through probate, as does a will.

However, there are other estate planning devices which avoid probate, such as a joint tenancy, a life insurance policy, and others.

Can a Living Trust be Contested? Yes. A trust can be contested in a special proceeding. There is no blanket rule that a living trust cannot be contested.

If you need help developing your estate plan, give us a call to speak with one of our Will and Trust specialists or complete our online evaluation form to get the process started today.