Does my Old Will Expire? By Chris Miller, Esq.

Every now and again, a person will die with a Will signed long ago.   The Georgia Probate Code recognizes this possibility and gives Executors and the lawyers they hire a path to admit old Wills to probate.

A change of circumstances does not automatically revoke a Will.  If a Georgia resident gets a divorce and then dies before changing his or her Will, then the former spouse is treated as deceased for the purposes of interpreting the Will, but the other terms of the Will are still respected.  That means a former spouse’s relative might still be an Executor or beneficiary of the Will.

If a person gets married and then dies before changing his or her Will to include the new spouse, then the new spouse is entitled to claim the same share as if the decedent had no Will. However, the rest of the Will, including the choice of Executor, is still is a valid instruction and remains in full effect.

If a person has a new child and doesn’t mention that child in his or her Will, then that child has a right to claim a part of the estate, even if a spouse survives and inherits the estate while the other children receive nothing. People who might have children should make sure that their Wills include a sentence that contemplates future children, and that way, the future children will be treated the same as children named in the Will.

A faded old Will can still be used to control a person’s estate.  If the Will is accompanied by a Self-Proving Affidavit, which is a document showing that both witnesses were in the same room as the person signing the Will and the person signing the Will knew what they were doing and were acting on their own, then probate can flow smoothly.  Alternatively, the Executor can either track down one of the witnesses, or if they are both unavailable, then supply affidavits from two people who can attest to the decedent’s signature. This alternative honors the wishes of someone who signed a Will and then lived a long and interesting life.

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