Atlanta Estate Planning Lawyer Blog

The Atlanta, Georgia probate Law Firm, THE ADAMS LAW OFFICES, LLC, (“THE ADAMS LAW, LLC”) has skilled, experienced and resourceful Atlanta, Georgia probate lawyers and Atlanta, Georgia probate attorneys. THE ADAMS LAW, LLC, Atlanta, Georgia probate mediation, dispute, and litigation lawyers and Atlanta, Georgia estate dispute, mediation, and litigation attorneys have seen a steady increase in the rise of Georgia probate law based claims against Georgia Probate Court appointed executors for inventory and accounting, removal, money damages, and more. Georgia probate court executors have significant liability by assuming this position. To the contrary, Georgia heir and beneficiaries have significant rights to know the what, where, when, and how of the estate's status. They also have the right to force the executor to compile and Georgia estate inventory and accounting even if this is specifically not required by the will. The Georgia estate executor can incur personal liability if money or assets can not be accounted for and will likely incur personal liability for these monies and assets.

The basic remedies against Georgia Probate Court appointed executors can be found in The Official Code of Georgia Annotated (“O.C.G.A.”) § 53-7-54, which reads as follows:

(a) If a personal representative or temporary administrator commits a breach of fiduciary duty or threatens to commit a breach of fiduciary duty, a beneficiary of a testate estate or heir of an intestate estate shall have a cause of action:

(1) To recover damages;

(2) To compel the performance of the personal representative´s or temporary administrator´s duties;

(3) To enjoin the commission of a breach of fiduciary duty;

(4) To compel the redress of a breach of fiduciary duty by payment of money or otherwise;

(5) To appoint another personal representative or temporary administrator to take possession of the estate property and administer the estate;

(6) To remove the personal representative or temporary administrator; and

(7) To reduce or deny compensation to the personal representative or temporary administrator.

(b) When estate assets are misapplied and can be traced in the hands of persons affected with notice of misapplication, a trust shall attach to the assets.

(c) The provision of remedies for breach of fiduciary duty by this Code section does not prevent resort to any other appropriate remedy provided by statute or common law.

Even if you follow the necessary probate steps, there are times when you can find yourself involved in an Atlanta probate dispute or estate dispute. Some of these situations include, but are not limited to:

• Breach of Fiduciary Duty

• Interference with Inheritance

• Fraudulent Conveyance

• Misappropriation of funds, estate assets, estate inventory

• Self-dealing

• Conversion

• Negligence

• Accounting Claims

• And more

As an experienced Atlanta, Georgia probate lawyer, I know that when a loved one has passed away, the process of going through the legal system to determine and distribute their estate can be a tremendous challenge. This process, for better or worse, is known as the Georgia probate process (commonly referred to as “probate”). Whether there is a will or not the Georgia court will assess the properties and pay off any outstanding debts before distributing the estate. First, however, they must determine if the will is valid, before assessing the amount of debts or taxes owed. Fortunately, the State of Georgia Probate Courts have made the probate process very easy and relatively inexpensive. Nevertheless, it is prudent to retain an experienced Atlanta, Georgia probate lawyer or Atlanta, Georgia estate attorney to ensure the probate process proceeds smoothly, fairly, and without incident.

NOTE – RETAINING A GEORGIA PROBATE LAWYER IS AN ESTATE EXPENSE:

THE DOWNSIDE TO NOT RETAINING AN EXECUTOR CAN BE DEVASTATING INCLUDING REMOVAL, PERSONAL LIABILITY, LOSS OF EXECUTOR FEES, CREATING ENEMIES IN YOUR FAMILY, AND PROMOTING SIGNIFICANT FAMILY DISHARMONY.

HAVING AN ATTORNEY REMOVES ALL THESE LIABILITIES, PREVENTS ATTACKS ON YOU BY YOUR OWN FAMILY, AND DISSOLVES THE PERCEPTION OF BIAS, SELF-DEALING, AND MISAPPROPRIATION OF FUND, CONVERSION OF ESTATE ASSETS, AND MISMANAGEMENT OF ESTATE ASSETS. FAMILY HARMONY IS PRESERVED AS WELL. I DO NOT THINK YOU CAN PUT A PRICE OR VALUE ON THIS.

An Atlanta, Georgia probate lawyer or Atlanta, Georgia estate attorney can help you avoid any unnecessary will disputes and represent you and your family should a dispute arise.

THE ADAMS LAW OFFICES probate dispute and litigation attorneys have significant experience representing beneficiaries, heirs, and executors, administrators, and fiduciaries in Georgia probate disputes. To learn more about how the Atlanta, Georgia estate disputes and litigation attorneys at ADAMS LAW OFFICES can protect and advance the best interests of you and your family, contact our Atlanta office to schedule a consultation. Call our Main Number (404) 467-8611, Toll Free 1-877-412-3267 or through our Buckhead confidential “Contact Us Form”.

Our Firm is conveniently located and easily found in the Buckhead section of Atlanta near the intersection of Piedmont and Peachtree Roads. There is free secured covered parking. There you will find capable, experienced, and aggressive Atlanta, Georgia probate mediation, litigation, dispute lawyers and Atlanta, Georgia estate mediation, dispute, litigation attorneys who are ready to assist you and protect your inheritance interest and guide executors through the Georgia probate process safely and without liability.

As an Atlanta Probate Lawyer, I have experienced first-hand the wide range of time frames and seemingly, intolerable leeway a Georgia executor or administrator has to carry out the fiduciary duties imposed pursuant to TITLE 53 of the Official Code of Georgia Annotated entitled “WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES”. Under this Title 53, the Georgia Probate Court likely will allow the any GA executor or administrator varying degrees of time in which to undertake the Georgia estate administration process in any decedent’s estate. Any acting executor or administrator who is qualified and in charge of an estate in Georgia Probate court has approximately six (6) months to create an inventory of all of the estate's assets, liabilities, debts and other relevant estate matters, and issue and provide any beneficiary or heir of the Georgia estate an inventory and accounting. Moreover, this seemingly lenient rule of Georgia Probate Law is oftentimes waived by an unknowing estate beneficiary or heir if they “sign off”, or “consent” to giving the estate executor or administrator this leeway.

The unknowing beneficiary or heir oftentimes signs documents as requested by the Georgia executor or administrator, or their GA Probate Lawyer, without knowing or asking what these documents mean. It is essential for any beneficiary or heir to understand the impact signing any “release” will have on them in knowing and understanding the estate's assets, liabilities, debts and other relevant estate matters such as the status of the estate proceedings or their inheritance. As a rule of Georgia Probate Law, you should be very cautious about any documents you sign. This is especially true if it is requested you sign anything having to do with an estate under which you are a beneficiary or heir, where you are requested to sign in front of a witness or witnesses or in the presence of a Georgia Notary Public. Under Georgia Probate law, you are deemed to have read, understood and presumably had the right to consult with a Georgia Probate Attorney or Atlanta, Georgia Probate law firm concerning the meaning and impact of these documents. In my Probate Law practice, I often see beneficiaries and heirs unknowingly waive important rights to their detriment. Moreover, many times it becomes a “he says she says” argument as to whether the beneficiary or heir knew or understood the dire impact of the documents she or he signed or if any explanation was given at all.

If you are a beneficiary or heir under a Georgia Probate Court estate, you should consult an experienced Atlanta Probate Law Firm before signing anything. As an experienced Georgia probate lawyer, I can not tell you how many time clients come into our Buckhead, Atlanta, Georgia Probate Law Firm after it is to late and the client-beneficiary or client-heir has given up many important rights they would have been entitled to had they not signed important empowering estate documents to their detriment.

Continue reading "FIND A PROBATE LAWYER IN ATLANTA, GEORGIA WHO CAN UNCOVER ADMINISTRATOR AND EXECUTOR SELF-DEALING BY DEMANDING A “PETITION FOR INVENTORY AND ACCOUNTING” - GEORGIA ESTATE BENEFICIARY AND HEIRS CAN PROMPTLY DEMAND ANSWERS" »

The Georgia probate litigation lawyers at my firm are receiving more and more calls from persons interested in finding out whether they need a Georgia probate attorney to represent them in a Georgia probate ‘inheritance’ or ‘estate’ administration proceeding, dispute or litigation. Our Firm also receives an equal number of calls from executors or administrators of Georgia estates seeking experienced local Atlanta, Georgia, probate litigation lawyers to guide them through the trials and tribulations of being the executor or administrator of a Georgia estate. As an experienced Georgia probate lawyer, I have found that chances are if you think you need a Georgia probate lawyer, you almost certainly do.

The Atlanta probate litigation lawyers at our Firm meet weekly to discuss the status of the cases our Firm is handling, discuss strategies which are best for our clients, and to bounce ideas and other ways to further our clients’ best interests, we have also begun discussing and sharing ideas and methods in order to be the best Georgia probate lawyers for our clients. This process involves analyzing not only what our Firm’s Georgia probate dispute attorneys are doing in their cases, but also how opposing counsel are challenging and standing up for their clients against us. Since we found some common similarities between effective probate litigation attorneys, we decided to share them with you in your search for a qualified probate attorney.

Our analysis is as follows:

• Find Georgia probate attorneys who can handle the stress of a Georgia probate case. A strong lawyer can help you through this emotional struggle and take much of the stress off you. If you are seeking out Georgia probate litigation lawyers in order to find one to represent you, it is likely because a relative or someone close to you has died, you stand something to gain something from the person who has died (this person known under Georgia law as the "decedent"), or a combination of both of these factors. Usually these factors range from monetary or other gain to peace of mind that the loved one’s death is handled properly and peacefully. As such, this likely is a difficult process for you and emotionally draining. More often than not, there is relentless intra-family fighting and disharmony. Again, look for a lawyer can help you through this emotional struggle and take much of the stress off you.

• Find Georgia probate lawyers who are accessible to you, care about you and your case, and who you feel will your case for you by achieving your goals.

• Find Georgia probate attorneys who willingly give you their contact information, such as cell number, and other information. While you likely will not call this lawyer on his cell too often, this is a good indicator of how much dedication the lawyer has and how much he cares about providing exceptional service to you. Nevertheless, you know he or she will be available if you are in a bind.

• Find Georgia probate lawyers who can handle both transactional probate matters and probate litigation matters. Remember, a Georgia probate litigation case still has the transactional and administrative aspects to it. Moreover, these aspects are likely to be more convoluted and complicated. Thus, you need a probate lawyer that can handle any matters that come his or her way, whether they are transactional or litigation based. In addition, a lawyer who knows both transactional probate matters as well as probate litigation matters almost assuredly will have the upper hand over opposing counsel.

• Find the Georgia probate lawyers who regularly handle probate, trusts and estate cases, but also know about other areas of the law, such as real estate, business and taxation. Georgia probate estate matters likely consist of most of the decedent holdings and they likely will involve a host of legal areas. In contrast, some of the decedent’s holdings may pass “outside” of the decedent’s estate and the extra knowledge that your Atlanta, Georgia probate lawyers may have, will serve you well.

Continue reading "THE BEST ATLANTA PROBATE LITIGATION ATTORNEYS -- HOW TO FIND THEM" »

As an Atlanta Will Contest Lawyer, I have seen the number of cases on the rise. As an Atlanta, Georgia Probate Litigation lawyer, I have represented many clients in different types of will contests. Especially common are the cases that involve undue influence in the writing of wills. When undue influence is found to have played a role in the writing of the will, then the court can determine that the will is null and void.

Undue influence occurs when an act takes place that overcomes the victim’s free will. Undue influence is most likely when there is a confidential relationship between those involved and when one of the parties is of greater mental capacity. The confidential nature of the relationship and ability of one party to exert influence over the other party due to a superior intellect are the key factors that allow the manipulation to go unnoticed.

Many cases of undue influence occur between parents and children. When a close relationship exists between one child and the parent, it is possible for the child to manipulate the parent into signing a Georgia will that favors that particular child. It is also possible for the influence to come from outside the family, for example from a hired caregiver who spends large amounts of time with the elderly person.

When faced with a case of undue influence regarding a will, the Georgia probate court will examine the mental state of the deceased at the time that the will was executed. Evidence of mental or physical coercion is required. Because direct evidence is difficult to collect (since the victim is deceased), the courts will rely on circumstantial evidence for proof. The court will try to determine if:

1) the decedent was easily influenced, due to age, health or general mental state

2) the person suspected of undue influence had an opportunity to coerce or manipulate the victim

3) the person suspected of undue influence had the motive or disposition to influence the victim

4) the person suspected of undue influence was actively involved in creating the will

5) the will appears to have been influenced

Continue reading "UNDUE INFLUENCE CASE AND WILL CONTESTS IN ATLANTA, GEORGIA, INCREASE SEEN" »

In the beginning of the Georgia estate probate process, the Georgia probate court will assign an executor or administrator (also known as a personal representative) to manage the distribution of an estate. This occurs when no will exists. It also occurs when the executor named in a will cannot serve or does not want to serve, or when no executor is named. Many times when the Georgia probate court appoints an individual as a personal representative, this comes as a surprise to the appointee.

The initial surprise often changes to concern when the personal representative realizes the serious nature of their new role. The administrative responsibilities of personal representatives are fiduciary in nature and require knowledge and diligence to complete. Personal representatives who fail to complete their duties and fulfill the legal obligations required by Georgia probate law can be held liable for their actions. As an experienced Atlanta, Georgia Probate Attorney, I have handled countless probate disputes where personal representatives were accused of wrongdoing. In some cases there was true intent to deceive, while in other cases an innocent lack of understanding of the duties caused the issue. Either way, the personal representative can be held legally responsible.

Because the administrative tasks of Georgia executors and administrators are so complex, a North Georgia probate attorney can be retained to mitigate liability. An attorney will assist and guide personal representatives in their duties, drafting legal documents and ensuring that court deadlines are met. Besides protecting against personal liability, a GA estate proceeding lawyer should be retained to keep the probate process moving forward as quickly and efficiently as possible. Probate proceedings that are lengthy usually involve disputes or litigation between interested parties. And litigation costs the estate money, which is not in the best interest of the beneficiaries. So a personal representative that can administer the estate efficiently will ensure that the estate’s assets are intact and available for distribution when the proceedings conclude.

Continue reading "HAVE YOU BEEN APPOINTED A GEORGIA ESTATE EXECUTOR OR ADMINISTRATOR? NOW WHAT? AN ATLANTA PROBATE, WILLS, TRUST, AND ESTATE LAWYER SPEAKS" »

As an Atlanta probate litigation attorney, I have noticed that as the population of the United States ages, it is a common for most families to have an elderly parent who is independent enough to live alone, but who is unable to manage household expenses. In the interest of helping the senior maintain independence for as long as possible, a son or daughter’s name is frequently added to the senior’s bank account to facilitate payment of the expenses. In addition to paying any bills from the account, the joint account holder will be able to keep an eye on the outflow of monies and perhaps oversee any transactions that the senior does make. How the account is set up when the additional person is added, though, can have an impact on the outcome of any Georgia probate proceedings upon the death of the parent.

When creating a joint bank account, inserting the word “or” between the names of both account holders is a simple way to allow for either party to process transactions independently. While this facilitates the payment of expenses as described in the previous example, if one account holder dies, it also allows for all funds in the account to pass to the surviving account holder. When the second person is a spouse or the only surviving relative, this may not pose a problem. But when there are other heirs, a dispute may take place if the heirs feel that they are entitled to a portion of the funds. The question of who receives the funds will be addressed during probate proceedings, as the true intent of the deceased is investigated. Most commonly, the proof of how the money will be divided up is found in the will. But with no will, or if the will does not clearly state how the funds are to be allocated, the court will needs to determine if the second account holder was added only for the sake of convenience or if it was the true intention of the deceased to gift the funds to the second account holder.

When the word “and” is used between two names on a joint bank account, no transactions on the account can be processed without the other party’s signature. This is common in Georgia business partnerships where the inflow and outflow of funds needs to be closely monitored. Under this scenario, in the event that one account holder dies, half of the funds will pass on to the estate of the deceased and half of the funds will pass to the surviving account holder. This set up is not common in family dealings and does not usually cause a dispute during Georgia probate proceedings.

The types of joint account disputes involving family members can be avoided by asking an experienced and qualified Georgia probate attorney to set up a will that clearly defines your desired intentions. Keep in mind that while probate proceedings resolve issues on these difficult and emotionally charged cases, your heirs are the ones who will live not only with the outcome, but also with the consequences caused by any drama that plays out during the proceedings. With the proper planning you can eliminate this turmoil and create a positive experience for your loved ones.

Continue reading "JOINT ACCOUNT DISPUTES IN GEORGIA AND THEIR IMPACT IN PROBATE COURT PROCEEDINGS" »

As Primary Georgia Trust Litigation Lawyer in an Atlanta Trust Litigation Law Firm, beneficiaries named in a Georgia trust are entitled to understand the terms of the trust and what the trust will provide to them, both present and future. This can be critical to the lives of surviving minor children, spouses with no other source of income, or incapacitated individuals who must now rely on the trust to take care of their medical and living expenses. Trustees are in charge of managing and protecting trust assets in a transparent manner that upholds the trustee’s fiduciary responsibility to the beneficiaries.

One of the important fiduciary duties of Georgia trustees is to ensure that assets and property held by the trust are properly accounted for and reported to the beneficiaries. This is the foundation for trust in the trustee/beneficiary relationship. Some trust documents outline the procedures that beneficiaries must follow to request accounting information. In cases where the trust does not provide the procedure, Georgia law regulates when and how to request an accounting of trust assets. An experienced Georgia Trust litigation attorney can help beneficiaries better understand the accounting information they are entitled to and how to obtain it from the trustee.

Part of the duties of a trustee is to follow generally accepted accounting procedures (GAAP) for the recording of operating transactions. While it may be best to use an accountant to handle the accounting requirements, trustees can do this themselves. The trust’s assets and liabilities must be recorded. Assets can include real estate, stocks, bonds or any other property or asset that the trust owns. Liabilities are classified as debt and should be recorded at current values. Liabilities can include taxes owed, accounts payable or deferred tax liability. Expenses should also be recorded in a timely manner. Trust expenses can consist of the trustee’s salary, investment fees, office supplies, rent, and any applicable utilities. Moreover, an experience experienced Atlanta Trust Lawyer can help you determine if your Trustee is investing according to the Prudent Investor Rule and not putting your trust assets at risk.

Finally, the trust’s revenue must be tracked. Revenue can be generated when bank accounts held by the trust accrue interest income, stock and mutual fund portfolios earn gains, and property is sold. In the end, the timely and accurate recording of assets, liabilities, expenses, and revenue will allow the trustee to easily create documentation that shows beneficiaries the total value of the trust. Failure to provide this information to beneficiaries is a breach of fiduciary duty and can result in the removal of the trustee.

Continue reading "ARE GEORGIA TRUST BENEFICIARIES DUE ACCOUNTING OF TRUST ASSETS? YES, THEY ARE LEGALLY ENTITLED TO SUCH ACCOUNTINGS" »

As an Atlanta, Georgia Estate Attorney, I am always interested in helping my clients develop an optimal estate plan that will effectively manage their assets. Many of my clients come to my office already convinced that they need a Georgia living trust versus a will. People perceive the Georgia probate process to be lengthy and costly process, in both time and money. This perception is oftentimes based on the probate process in general. It is true that many states have a probate process that is exceedingly expensive and complicated ( Florida would be one state I would put in this category). However, the probate process in the State of Georgia would not fall into the category of expensive and complicated when you are being represented by an experienced Atlanta, Georgia probate lawyer.

The attraction of a Georgia living trust is that the assets named in the trust are not considered part of the decedent’s estate and therefore do not go through probate. To the contrary, assets that are subject to a testamentary devise, bequeath, or bequest under the decedent’s will, would be part of the decedent’s estate and would go through probate. But as I advise my clients, probate can be an efficient and useful process. Wills should be structured properly with the aim of mitigating conflict between the parties involved. Conflict and the resulting mediation or litigation is what inevitably causes the Georgia probate process to potentially become expense and time consuming. Nevertheless, oftentimes a form of dispute resolution or estate litigation in probate court is necessary. Sometimes a will is the right option when a living trust is too expensive for the benefit it provides or if conflict is inevitable between heirs. What is more, one of the greatest benefits of the probate process, is the Georgia probate court’s supervision over all parties involved in the decedent’s estate administration. In fact, the estate lawyers in our Atlanta, Georgia probate Law Firm, which specialize in Georgia estate administration and litigation, have found probate court oversight extremely beneficial when there are contentious heirs and/or aggressive creditors.

Different from a written document like a will, a living trust is a legal framework into which assets are transferred. Assets in a living trust can include cash, bank accounts, investment accounts, stock, land, homes, vehicles, collectibles and any other personal property. The terms of the living trust spell out to whom the assets will be distributed upon death and because the assets are no longer in your name, but in the name of the trust, they will not have to go through probate to be distributed. Besides posthumous probate avoidance, another important advantage of a living trust comes into play if the individual becomes unable to manage independently due to sickness or disability. In this case, a previously named successor trustee can take over and handle certain matters pertaining to the living trust.

The naming of trustees is obviously critical when setting up a living trust. Many people name themselves as the sole trustee and also name a series of successor trustees (in case one or more named trustees are not able to serve when needed). Either a person or an institution can be named as successor trustee. Spouses setting up a living trust frequently name themselves as co-trustees, although any two adults can be co-trustees. One of the benefits of naming co-trustees is that upon the death, resignation, or incapacity of one of the co-trustees, the surviving co-trustee can continue to administer the trust. Ultimately, the law gives trustees the right to complete control over assets in a living trust. For this reason it is critical that only the most trustworthy people are named as trustees. It is important to remember, all Georgia trustees must adhere to rigorous fiduciary duties imposed under Georgia law, whether they are an individual or entity. This is the same Georgia fiduciary duty imposed upon executors, administrators, and personal representatives.

Continue reading "WHAT TYPE OF GEORGIA ESTATE PLAN DO YOU NEED? EXPLORING WILLS AND LIVING TRUSTS" »

There are many tools that can be used to facilitate the transfer of assets in an estate plan. Holding property jointly (in two or more names) is one method that has advantages and disadvantages. Joint ownership of real estate, bank accounts, and other property is common because assets owned jointly with rights of survivorship do not become assets of the decedent’s estate. These assets do not pass through probate to be distributed but are transferred by operation of Georgia law and automatically pass outside of the decedent’s estate to the surviving owner(s). When joint owners are spouses, this set up can be ideal. Because there is no delay in the transfer of property under joint ownership, the surviving owner can immediately take control of the property. This is especially useful if access to the property is urgent, time-sensitive, or when financial issues need to be resolved immediately upon the death of the decedent joint owner.

Joint ownership does have its downsides and should be carefully considered before being implemented in any inter vivos circumstances or estate plan. For instance, one scenario where it can be unwise to set up property ownership jointly is when a parent and child are named as joint owners. Problems can arise if the parent has other children who are not included in the joint ownership of the property or the child involved in the joint ownership is financially unstable. With multiple siblings, even if the Georgia will specifies that the joint property should be divided evenly between all of the children, the joint ownership property is not part of the estate. Thus, the surviving owner is not obligated to split the property and distribute it per the Georgia will. This is because the joint property transfers to the surviving owner(s) by operation of law. Thus, the property never becomes part of the estate and therefore is not subject to the laws of intestacy or distribution per the terms of the Georgia will. Also, if the joint owner is a child with financial issues, the parent can lose the property if the child’s creditors endeavor to collect outstanding debts. The child’s joint ownership interest can also be threatened if the parent has financial issues, which cause the parent to declare bankruptcy. This can oftentimes be the case if the parent has significant medical expenses or other expenses associated with growing older and not having earned income.

A Georgia Estate Planning attorney can provide other alternatives to placing property in joint ownership. One good alternative is to draft an effective estate plan that specifies how the property will be divided under a number of possible scenarios. Without a crystal ball we cannot foresee which scenarios are most likely, but they can include illness, remarriage of a spouse, bankruptcy, etc. With such variability, it is prudent to draft a detailed estate plan that can factor in multiple circumstances. Such an estate plan is especially effective for larger estates or in situations where a dispute between heirs and/or beneficiaries may be inevitable. Estate planning under such scenarios often involves the use of revocable and irrevocable trusts and annual gifting. Implementing these types of estate planning vehicles can be complicated and it is necessary to have an experienced estate planning attorney assist you.

Continue reading "JOINT PROPERTY IN GEORGIA AND ESTATE ASSET DISTRIBUTION – FIND THE BEST STRATEGY FOR YOUR ESTATE" »

Georgia last will and testament statues clearly outline the requirements for the creation and execution of a valid will. When these strict requirements are not met, the will is considered invalid and the testator’s estate becomes subject to the Georgia laws of intestacy, just as if no will had been created or executed. In our Atlanta probate law firm, our lawyers often represent clients with probate issues that could have been avoided if proper will drafting and will execution practice had been strictly followed. The consequences of failing to properly execute a will can be devastating for those surviving the testator. This situation can also constitute malpractice for the drafting and executing attorneys or law firm. When a will is deemed invalid because of failure to execute the will with the proper formalities, Georgia intestacy laws dictate how the estate assets are distributed. These types of cookie-cutter arrangements bypass the true intent of the deceased and may lead to conflict among the surviving heirs.

The following are some of the steps to keep in mind when executing a will in Georgia. The person executing the will, the testator, must be at least 14 years old. The will must be in writing, although the law does not specify a particular format, except that it cannot be handwritten. The will needs to be signed by the testator, who must be sufficiently competent (of sound mind and memory) at the time the will is executed, know the nature and extent of their assets, and that they are executing a will voluntarily and of their free will. In Georgia, another person can assist the testator in signing the will. This is legally sufficient when it is done in the presence of the testator and at the express direction of the testator. A minimum of two witnesses must also sign the will in the presence of the testator. The witnesses must view the signing of the will by the testator as defined by the “line of sight” rule. This means the witnesses must have an open and unobstructed line of sight to the testator’s signing of the will.

Should a witness also be beneficiary under the will, he or she must forfeit their inheritance under the will for their act as a witness to be valid, and as a result, the will to be valid. Thus, witnesses whom are beneficiaries to a will should not be a witness to the will. As a last resort, however, the testator may have three or more witnesses to their will. Under Georgia Code Section 53-4-23, a witness who is also a beneficiary may receive testamentary gift from the estate only when a minimum of two other witnesses sign the will. In this case, the other two witnesses cannot be beneficiaries. A useful and increasing necessary document to attach to the will is a self-proving affidavit. While it is not a requirement, this document proves that the will was properly executed and is genuine. It should be signed by the testator, the witnesses and certified by a notary public. Without a self-proving affidavit, one of the witnesses must be located at the time of the testator’s death and sign a legal document called “Interrogatories to Witness to Will. In this legal document, the witness attests to the validity of the will he or she witnessed. Further, the witness may be required to appear in court and give testimony under oath. With the self-proving notarized affidavit, this is not necessary and the will is likely admitted to probate without any delay.

Continue reading "FOLLOW GEORGIA WILL EXECUTION REQUIREMENTS TO ENSURE YOUR WILL IS VALID AND AVOID WILL CONTEST LITIGATION" »

As an Atlanta, Georgia Probate Lawyer, I always recommend that my clients prepare a will. The existence of a will makes the distribution of estate assets run more smoothly during probate proceedings and can significantly reduce disputes between heirs and beneficiaries. When a will is written, an executor can be named who will administer the estate. In some cases, when no executor is named in the will, or if there is no will, the court will assign an administrator. In all of these scenarios, disputes can arise surrounding the choice of the executor or administrator.

Disputes over executors and administrators, which cause unneeded stress during probate proceedings, occur because the role of estate executors and administrators is so important. This is a fiduciary role in which the person administering the estate has very specific legal and financial responsibilities. Because of the serious nature of these responsibilities, there are times when the person chosen is regarded by the heirs and beneficiaries as being an inappropriate choice. Executors, as well as court assigned administrators, have to operate in a levelheaded, responsible manner during the process and they need to be able to understand the mechanisms of Georgia probate law. Besides possessing a calm disposition and having knowledge of the proceedings, they also need to be trustworthy and honest and have the best interests of all parties at heart. Without these traits, a poorly chosen executor or administrator can cause havoc in the proceedings. Fortunately, Georgia law does provide heirs and beneficiaries with a mechanism to remove executors and administrators.

Georgia probate law allows for a formal objection to be filed that removes the person picked to administer the estate. When the heirs or beneficiaries recognize that the person assigned to administer the estate is unfit, it is always preferable to remove them immediately when probate proceedings are initiated. By acting promptly, before any breach of the fiduciary duties can occur, costs associated with fraudulent actions and any ensuing legal fees can be avoided. Of course there are cases in which the person chosen initially appears to be adequate for the responsibilities, but later acts inappropriately, is dishonest or irresponsible. In those instances, it is possible to sue for breach of fiduciary duties, including, but not limited to, the removal and replacement of the administrator or executor. This can be done once a breach of duties occurs, or if a breach has not yet occurred, once there is evidence that the person intends to violate their fiduciary duties.

In any probate proceedings it is important to secure the counsel of a qualified and experienced Atlanta, Georgia probate attorney. Individuals acting without proper legal counsel can unknowingly file false or groundless petitions, such as petitions to remove a person assigned to administer an estate. These frivolous petitions carry specific penalties under Georgia probate law. For that reason, it is especially wise to always seek legal counsel to avoid these types of issues, as well as to ensure the most successfully outcome of the probate process.

Continue reading "DURING GEORGIA PROBATE PROCEEDINGS, PROMPT REMOVAL OF UNFIT ESTATE EXECUTORS AND ADMINISTRATORS PREVENTS FRAUD AND SAVES ON LEGAL FEES" »

As an attorney that practices probate litigation law in Atlanta, Georgia, I see many clients who need guidance in the complicated area of probate proceedings. Because the death of a family member is such an emotional and difficult time for all involved, it is important to have legal safeguards in place that not only protect heirs and beneficiaries during this delicate period, but that also protect executors and administrators. When a will exists and an executor has been named in the will, it is not uncommon for conflicts to develop between the executor and the heirs and beneficiaries. When there is no will, it is also possible for conflicts to emerge between the administrator and the heirs. Both parties, those administering the estate and those inheriting the estate, can have valid legal concerns.

Even when the estate is being administered in a responsible manner, because emotions run high in these situations, heirs and beneficiaries can begin to imagine that the executor or administrator is taking advantage of the situation. And executors and administrators can feel that, despite their hard work administering the estate, they are wrongly accused of inappropriate behavior. The good news is that by inserting some legal checks and balances into the process, these situations can be avoided or, if they do occur, resolved. One example of a useful legal instrument that helps diffuse these conflicts is the petition for inventory and accounting. Even though the executor or administrator appears to have absolute power to manage the estate, that person is in fact bound by a fiduciary duty. As such, the person administering the estate is required to handle all related duties in the best interest of all parties. When the duties carried out fall under suspicion, heirs and beneficiaries can make a legally binding request for an inventory and accounting of all estate assets. It is important to note that in Georgia sometimes heirs and beneficiaries waive their right to petition for inventory and accounting, but when a conflict arises they can legally renounce the waiver and the petition can move forward.

In some cases, conflicts surface when executors and administrators can have difficulty providing an inventory of assets in a timely manner. It is precisely this situation that can make it seem that there is an abuse of power on their part. But there are instances that can cause undue skepticism and one of these is when estate assets fall into categories that are difficult to identify. One type of asset that can prove very difficult to discern is intellectual property, such as artistic works, inventions or patents. For this reason it is important to retain the service of an experienced and qualified probate lawyer who can assist in identifying all tangible and non-traditional assets and protect the interests of all parties involved. Whichever side you find yourself on in probate proceedings, as an executor or administrator or as an heir or beneficiary, you need to be aware of the legal options, rights and duties that apply to you and seek the support of legal counsel.

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