An Oral Will is a Will that is spoken aloud and not written down. Oral Wills were once recognized in Georgia, but they are not anymore. Many people assume that they are recognized because of the way television and movies depict probates and estate planning. Today we’ll debunk some common misconceptions, explain what makes a Will valid, and also explain gift giving and get into a little contract law.
Elements of a Valid Will
In the state of Georgia a Will is considered valid if certain requirements are met. Meeting these requirements is crucial, as if your Will does not you will be considered to have died intestate. Intestate is a legal term that means “without a Will.” When you die intestate your estate must pass through probate and the Courts will distribute your estate as the law dictates. Meaning you have no say in the matter because you didn’t have a valid Will.
To avoid intestate probate you must have a valid Will. The state of Georgia requires several things for the Will to be valid. The first requirement is that the Will be written down. It can be handwritten or typed—which is preferable—but it must be written down. The testator the person creating the Will, must be at least 14 years old and of sound mind. Lastly, the testator must sign the Will in the presence of two witnesses.
If these requirements are met the state of Georgia will consider the Will valid and can probate the Will as it is written. This means the wishes you have outlined within the Will can be met.
These requirements prevent an oral Will from being valid. Because the first requirement is that the Will be written down. Additionally, having everything in writing can prevent arguments and disputes between your loved ones.
Deathbed Gifts
But what about a dying person’s wishes? What happens if someone makes a gift on their deathbed?
Since the gift giver is still living at the time of the gift, we must take into consideration contract law, not probate laws. Probate laws related only to deceased persons, while contract law, in this case, pertains to a person who was living at the time of the gift or contract.
With contract law, the element at play in this scenario is whether or not the gift is completed. A completed gift is a gift that changes from one person’s ownership to another’s.
So, if I were to declare on my deathbed that I want you to have my car, that is a nice thing to say, but if I don’t do anything else this is not a completed gift.
However, if I were to declare that I want you to have my car, and then I hand you the keys and tell you the car is yours, this is an attempt at completing a gift. Meaning that it could be argued that this intended gift was meant to be fully completed.
But if I declare I want you to have the car, ask you to bring me the title, and sign it over to you, I have completed this gift. This vehicle has transferred hands and is no longer a part of my estate.
Gifts Via Estate Planning vs. Gifts Before Death
There are tax considerations to take into account for gifting assets through an estate plan such as a Trust or Will. And there are also tax considerations for giving gifts during your lifetime.
Estate taxes can be significant if your estate is valued above the federal estate tax exemption— $13.9 million in 2025. This tax is substantial, at approximately 40%, and paid by the estate.
Gift taxes are assessed when a donor gives a gift in excess of the federal gift tax exclusion— $19K in 2025.
It’s important to work closely with an estate planning attorney and a financial advisor. These professionals can help you see cure the largest possible legacy for future generations with the least tax liability possible. Keep in mind that tax laws change frequently. This is why it is important to work closely with skilled professionals and to audit your estate plans yearly to ensure they are still the best fit for your estate.
Call us at (404) 736-6066 or schedule a consultation to discuss your estate, the elements and value of it, and what you can do to protect your legacy for generations to come.
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