December 5, 2012

GEORGIA PROBATE PROCEEDINGS – ASK AN ATLANTA PROBATE LAWYER – HOW LONG DOES THE GEORGIA PROBATE PROCESS REALLY TAKE?

In my many years as a Georgia probate attorney, I have represented numerous clients in probate cases. Most often my relationship with a client begins when I am asked this question, “How long will the Georgia probate process take?” In reality, this is only part of the question. What most parties in a Georgia probate hearing really want to know is, “When will I receive my share of the Georgia estate’s assets?” The answer to these two questions depends on several factors, including the speed that the petition can be completed and filed with the Georgia probate court, and then the length of time that the court will take to rule on the case. Nevertheless, I will say that the Georgia probate process in general takes anywhere from a little over six months to a few years. Therefore, I submit to you three rules of thumb, which I hope you will helpful and moderate your expectations. They are as follows:

One, be prepared to wait a substantial amount of time for the full probate process to be completed and the estate to be closed. Two, be patient and hope for the best, but be prepared to wait a long time if the particular case warrants this. Three, generally the more fighting, disagreement, disputes, and litigation, which may occur between the heirs, beneficiaries, and/or executors, the longer the probate process will take. Nonetheless, if it is any consolation, know that distributions may be made from the estate assets as the estate progresses through the Georgia probate process.

Once the required Georgia petition for letters testamentary or administration is filed, objections to the petition can be submitted during a set period of time (Objections in Georgia probate court are called "Caveats"). If objections are brought forward, then one or more hearing(s) is usually required which will delay the proceedings. If no objections are made, the court will not require a hearing and will order that the estate be opened, or that the administration of the estate begin. Georgia county probate courts will allow administration to begin when satisfied that the petition filed was carefully drafted. The petition must include the names of all the parties involved and the petition has to meet all of the Georgia probate petition legal requirements.

Although many factors can slow down a probate proceeding, there are several key items that are worth mentioning. The first is the location and number of beneficiaries. Where the beneficiaries live adds time to the process, as documents need to be shuffled back and forth for signature. Further, it is unreasonable to think that everyone will agree on everything all the time, so the greater number of beneficiaries involved can increase the odds for disagreement. In cases where beneficiaries have a lot at stake, they sometimes will hire their own legal counsel. When this is the case it can take more time to communicate and resolve issues.

Will contests in Georgia can cause significant delays in probate proceedings. A will contest is to determine the validity the Last Will and Testament of the deceased (the decedent). Anyone is allowed to hire a Atlanta, Georgia will contest lawyer and legally challenge the validity of the decedent’s will. Even when the reasons for filing a Georgia will contest are found to be bogus, the court must investigate each claim thoroughly before the probate process can continue. This can take up precious time and causes unnecessary expense. The degree of complexity of the assets in the estate can also increase the time that probate proceedings take. Before estate assets can be distributed, they need to be identified, located, and inventoried by the administrator or executor of the estate. Bank accounts and family homes are not very complex, and can be processed fairly quickly. In contrast, business interests and offshore investments can take more time to sort out and distribute.

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December 5, 2012

HOW DIFFICULT IS THE GEORGIA PROBATE AND ESTATE ADMINISTRATION PROCESS?

Hiring a probate and estate administration attorney to guide and represent you through the Georgia probate process may very well be the wisest decision any executor or administrator may perhaps make in carrying out their fiduciary duties in the process of administering a GA estate in county probate court. The consequences of improperly administering a Georgia Estate during the estate administration process are serious and have dreadful consequences which include personal liability of the Georgia executor and administrator.

These consequences stem from a fiduciary duty that all executors and administrators have when they administer an estate. These fiduciary duties are usually not even known by any would be or currently acting executor or administrator until they inevitably emerge. And, the fact of the matter is, nobody is going to tell about these “unknown” pending concerns and why there are compelling reasons for retaining a GA probate and estate administration attorney and Georgia law firm for the for the following reasons:

1) Most laypersons and attorneys who do not have considerable experience in GA probate law and GA probate estate administration proceedings, don’t know about these intricate GA “probate” laws or how to properly follow and use them to the benefit of the estate and any executor or administrator of the estate;

2) That the payment of an experienced GA probate and estate administration attorney is a valid estate expense and can be paid from estate funds;

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December 5, 2012

BEING EXECUTOR OR ADMINISTRATOR OF A GEORGIA ESTATE IS A DEMANDING UNDERTAKING

As a prospective or acting executor or administrator of a Georgia Estate, there are significant advantages in seeking and retaining the services of an experienced GA attorney or law firm. You likely will save money for the estate, understand and be counseled and advised on how to be fairly and fully compensated for finding, identifying and gathering the estate assets; transferring these assets into the estate name and account(s); making necessary and proper transactions, payments and distributions during the estate administration process; carrying out your fiduciary duties to the estate beneficiaries and heirs and any third parties with a binding legal interest in the estate; and, finalizing administration of the estate per Georgia law by distributing the estate assets to the proper beneficiaries or heirs of the estate. These are just an overview summary of the fiduciary duties you must carry out.

The estate administration process in Georgia probate court is much more in depth and complicated than the brief overview above and consulting an attorney and law firm that are experienced in Georgia probate and estate administration law is necessary and highly advisable. This is true whether the estate is straightforward or complex, small or large in monetary value or other assets such as real property, or whether there are only a few beneficiaries or many.

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December 5, 2012

A SUMMARY ON UNDUE INFLUENCE AND WILL CONTESTS IN GEORGIA

As an Atlanta, Georgia, Attorney, I encounter an ever-increasing number of cases filed contesting the validity of the Testator's Will. Adams Libby, LLC' skilled Georgia Probate Attorneys can explain to each individual Heir(s) or Beneficiarie(s) and Executor(s) or Administrator(s) alike, the nature of such proceedings, and what it means to them in their particular situation.

AFTER THE TESTATOR HAS PASSED AND THE ESTATE IS BEING PROBATED

One of the cases commonly referred to and used as a defense to undue influence is Haynes v. First National State Bank of New Jersey case in 1981. The New Jersey Supreme Court established that the burden of proof lies on the proponent, especially when there are suspicious circumstances surrounding the will. It is also extended to transfers of property between donors and beneficiaries. The donee must bear the burden of proof and establish that the transfer of property was a gift and not the result of undue influence. This is altogether not so problematic when other heirs and beneficiaries received gifts, estate taxes mandated gifts of property and other wealth to use the Testator’s Unified Credit, and more. Therefore, it is common that related parties make gifts to their “flesh and blood” rather than have this money go to the Georgia Department of Revenue or the United States Treasury (the IRS).

Another landmark case is Pascale v Pascale in 1988. The New Jersey Supreme Court stated that the donee must establish for the court that the donor had an unbiased and competent counsel prior to the drafting of a Georgia Will or Power of Attorney. It is also helpful if these documents remain relatively similar in disposition of assets and powers given to the Power of Attorney In Fact. This is especially true if the donor is found to be mental or physically weakened. However, if the instructions and dispositions in these documents remain relatively the same, then a “best practices management” argument would be as follows:

• Argue to the Jury that whether it was a time the Testator was knowingly competent and understanding the consequences of all his or her acts, to the time when lack of capacity of undue influence might have set in, that even after the onset of some disease making a person susceptible to Undue Influence, the Testator’s wishes and desires remained the same.

• You may also argue that any confidential relationship can create a presumption of undue influence that the donee must then prove to be otherwise. A donee with superior knowledge of financial matters, fiduciary relations, or one who is directly responsible for the physical care of the donor can be considered to have an extraordinary relationship that could create undue influence. However, you will then go on to say someone has to take care of the loved one, and why should it not be another loved one rather than a hired paid caregiver who possibly doesn’t care about the disposition of the Georgia Testator’s Estate.

• To the contrary, Consider King v Brown in 2006. The jury found the will to be invalid due to undue influence and lack of testamentary capacity. In 2002, the decedent divided his estate between his 6 children in a will. Shortly thereafter, two of the decedent's daughters (King and Brown) were named his guardians and they began to quarrel over the estate and money. When his house was destroyed, the decedent moved in with his daughter King and shortly thereafter wrote a new will disinheriting Brown and leaving his estate to his daughter King. The jury decided that this was a result of undue influence because the father had become so dependent on his daughter for care and influenced by King decided to disinherit his daughter. This is obviously the scenario you to avoid in your case and defense.


A PROCEDURE TO FOLLOW BEFORE THE TESTATOR SIGNS THE WILL, AND A WILL CONTEST IS ON THE HORIZON.

The types of joint account disputes involving family members can be avoided by asking an experienced and qualified Georgia Estate Planning and Probate Attorneys in Atlanta, Georgia to set up a Georgia Will that clearly defines the Testator’s 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. Moreover, documentation of the Testator’s ailment is necessary as is making sure that capacity is shown at the time of the making of the will as well as having a recent visit from a doctor are always helpful ways to document the intentions of the Testator.

In fact, it may be prudent to video tape the proceedings, take extra steps to make sure the Testator is of sound mind, ask a lot of difficult questions to demonstrate the Testator’s capacity, and also possibly record the Georgia Will execution. What is more, have the proper unbiased witnesses there who do not know the Testator and do not in any way shape or form have an interest in any Georgia will contest proceeding. This also might be time to add an extra witness to your Will and not use your own paralegal as a witness or witness the Georgia Will itself. The fact is, acting as if this situation does not exist is the absolute wrong thing to do. You may also want to do the following:

• Record the proceeding


• Have extra witnesses unrelated at the will signing

Ask extra questions to determine the Testator’s capacity
• Put an “In Terrom” or “No Contest” clause in the Will
• Acknowledge the left out parties and state why as opposed to just oddly leaving them out altogether looking as if the Testator forgot these would be heirs of beneficiaries did not exist
• Remember, when one makes a will must know and do as follows: 1) know the contents of the Will Document; 2) Know the Nature of his or her bounty; 3) Know and Understand the Nature and extent of his or her assets for disposition.
• The capacity to make a will is less than the capacity to make a contract, and only a lucid moment in time by the Testator necessary
• Use Common sense!

Adams Libby, LLC Atlanta, Georgia Will Contest Defense Lawyers know how to use the one party’s acts or omission against them. Remember, we are often on the other side of the Georgia County Will Contest Case. The Adams Firm Atlanta Estate Litigation Lawyers know what to look for, bring to the attention of the jury, and downplay.

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December 5, 2012

ATLANTA FIDUCIARY AND PROBATE LAW FIRM SEES RISE IN POWER OF ATTORNEY MISUSE, ABUSE, AND FRAUD

As an Atlanta, Georgia, power of attorney litigation lawyer, I have seen a sharp rise in the number of cases dealing with the misuse of a power of attorney or other similar document. Most times, the fiduciary lawyers at our Firm see the misuse and abuse of a Georgia power of attorney committed against the elderly, incapacitated, and other persons who tend to be trusting, in need of help and/or suffer from some mental disorder, cognitive disability, or laboring under circumstances, which make them easily influenced or coerced.

A power of attorney is an authoritative document and brings with it the ability to act on behalf of someone else; usually without his or her presence or any questions asked. A Georgia power of attorney is relatively easy to establish over a person. The person who gains and holds the power of attorney is referred to as the attorney-in-fact or agent. These forms can be purchased for a few dollars from a “legal document information company,” downloaded over the internet, bought in an office supply or other such store, and even found over the web for free.

The Georgia power of attorney document can be easily secured, signed by the trusting, gullible, eager to please, or even forged. Furthermore, once an “attorney-in-fact” has a Georgia power of attorney, there are relatively few security measures in place to prevent these documents from being used without any questions asked. This is the case with many banks, credit unions, credit card companies, businesses, financial institutions, mortgage companies, or other businesses.

The fiduciary litigation lawyers at our Firm have found that many persons acting as an attorney-in-fact or agent pretend to act as if they are helping someone else, when they are only helping themselves to the money and assets of another trusting person. They are also spending monies that otherwise would go into the estate of the person who gave the power of attorney and defrauding the rightful heirs or beneficiaries assets which “would have been in the estate,” but for the misuse, fraud and abuse. It is important to know a power of attorney, brings with it a fiduciary duty to act in the best interest of the person giving the power of attorney. If the attorney-in-fact or agent is acting in his or her best interest or without the best interest of the person giving the power of attorney, they are acting breach of their fiduciary duty and in breaking Georgia law. They must be stopped before too much damage is done!

Our Firm asks that you look out for your loved ones and the following circumstances:


• Overly Trusting Person Giving Power of Attorney

• Sudden Change in Financial Circumstances

• Sudden Change in Behavior – (Especially Emotional or Worrisome Thoughts or Actions)

• Need for Money by Attorney-in-Fact or Agent

• Mental Illness such as Dementia, Alzheimer’s or Other Mental Disorder

• Inability Care to for Self

• Coercion (by Family, Friends or Others)

• Duress

• Undue Influence

• Lack of Capacity

• Incompetence

• Fraud

• Other Suspicious Circumstances

The reason I am writing this article is to tell you that there are many ways to prevent, stop, and recover the damages caused by the misuse of a Georgia power of attorney. Our Atlanta fiduciary litigation law Firm specializes in Georgia power of attorney litigation. We can assist you in preventing fraudulent use of a power of attorney by an attorney-in-fact or an agent. We can also represent you against persons who have wrongfully acted as attorney –in-fact or agent. It is important to know there are numerous powerful remedies to stop and hold accountable persons who obtain, misuse, or abuse a power of attorney. We can also assist you after the power of attorney has been misused and the “would be estate” has been squandered.

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December 4, 2012

GEORGIA ESTATE ADMINISTRATION LAWYER GUIDELINES FOR EXECUTORS AND ADMINISTRATORS (THE “PERSONAL REPRESENTATIVE”)

In my Atlanta, Georgia Probate Law Firm's practice, I routinely counsel executors and administrators on how to administer Georgia estates. The role of an executor or administrator, (referred to under Georgia Probate Law as a “personal representative”) is challenging and is often accepted before a full understanding of the duties is apparent. The personal representative must be able to manage the process and the requests of the other parties involved, such as heirs and/or beneficiaries. One of the most sensible steps a personal representative can take is to retain the services of an experienced estate and probate attorney. The attorney will guide the executor or administrator during the probate process and can help prevent issues that surface from becoming full-blown disputes that require litigation.

There are a few general guidelines to follow that are very important when taking on the role of personal representative. The first is not to make any promises to anyone involved, including the heirs and beneficiaries. The Georgia probate process has a cadence of its own, with deadlines and procedures that need to be handled efficiently and properly. Giving a general timeline for the process is sufficient and it is key to stress that the proceedings will move faster if conflict is kept to a minimum.

Secondly, the Georgia estate administration process can be long. Prepare yourself as executor or administrator for this, and let the others involved know that the process will take time to complete. This is critical. Typically, the longer the probate process takes, the more common it is for beneficiaries and heirs to get anxious and start to argue. With conflict comes the need for lengthy mediation or litigation and as more time is spent, probate costs increase. As executor or administrator, it is imperative to be patient and manage not only your own expectations, but also the expectations of everyone involved.

A third point is that it is advantageous to begin the probate process by opening the estate as quickly as possible. As the administrator or executor, you must be appointed by the court to have the legal authority to administer the estate. Personal representatives have a fiduciary duty and must be thorough in carrying out the required steps to offer up the will (if one exists) as the definitive document that expresses the final wishes of the deceased. When a will does not exist, an administrator will be assigned to manage the estate. Often the stage is set early on for family disharmony and infighting, power struggles, disputes, and litigation. This is especially true when it takes too long to open the estate. Diligence, accuracy, honesty, and care in this process is essential and hopefully will keep the Georgia probate process moving forward more smoothly.

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December 3, 2012

WILL CONTESTS, GEORGIA LAW, AND YOUR LAWYER – WHEN AND HOW TO CHALLENGE A WILL

Georgia probate law allows for any individual, not just beneficiaries and heirs, to legally challenge a will that has been filed for probate. When successful, this type of petition deems invalid all of the provisions of a will, or sometimes just specific sections of a will. The person challenging the will is required to provide evidence that the will is invalid. There are many legal reasons for challenging a will under Georgia law. Five commonly accepted objections that frequently are used to contest a will are as follows:


1) The will presented is not the most up to date will.

2) The deceased was not of sound mind when the will was written.

3) The will was written under a fraudulent misrepresentation, mistake of fact, or other false pretense, which affected the way the will was written.

4) The will was written with undue influence from a third party.

5) The will was not executed properly, including not being witnessed or notarized correctly.

It is not enough for an individual to object to a will because they feel that the deceased has not treated them fairly in the will. Proof that the will is invalid must be provided and all claims will be investigated thoroughly by the court. As a result, this type of petition can cost unnecessary time and money and completely stalls the Georgia probate process. There are several things that can be done when a will is written that will discourage will contests. Using witnesses who can later provide logical testimony in front of a court and securing affidavits from credible individuals that can be used later to confirm the true intentions of the deceased are two of these strategies.

In my Atlanta Estate Litigation law practice, I have represented many clients in Georgia will contest lawsuits. Most recently I have seen an increase in cases that arise from the assertion of undue influence. Unfortunately, many people fall victim to third parties who have less than honorable intentions and wills written under this type of coercion or duress can cause havoc after the death of a loved one. When undue influence or any other cause for objection is suspected, the assistance of an experienced Atlanta Probate attorney is critical for the equitable resolution of a will contest. A qualified attorney can ensure that the genuine desires of the deceased are honored and defended.

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November 20, 2012

WILL CONTEST AND DISPUTE LAWYERS IN ATLANTA, GEORGIA, FIND GROUNDS FOR WILL CHALLENGES - CONTESTS

As a will probate litigation lawyer in Atlanta, Georgia, I know it is important to understand the grounds to contest a Georgia will. If you are a beneficiary, however, it is important for you to know if the Georgia will contains a "no contest" clause. If the will does contain a "no contest" clause and you still try to contest it, you will likely be disinherited all together. At Adams Libby, LLC, we can help you determine if there is a reason to contest a will and can represent your interests throughout the will contest process.


GROUNDS FOR CONTESTING A WILL IN GEORGIA:


Connected to the will—only people who are in direct connection to the will can contest its validity. You either have to be directly named in the will or a relative that should have been named in the will.


Undue influence—if you believe that your loved one was influenced wrongly or created the will under duress in their final days, then you may have a valid reason to contest the will
.


Fraud—if you believe that your loved one was the victim of fraud or wrongdoing, then you may be able to contest the will.


Mental Incapacity—if you question the mental capacity of the deceased person or testator, then the will may be considered invalid. You must be able to prove that your loved one was not of sound mind and body when the will was created.


TORTIOUS INTERFERENCE WITH INHERITANCE

If you do not wish to contest the validity of a Georgia will, but wish to interfere with the GA estate proceedings to acquire what is rightfully yours, there is another way. You may be able to file a lawsuit against the recipient of the portion of the estate you believe is rightfully yours. It is important to note, however, that this must be done when the testator of the will is still living. The Atlanta will contest lawyers at Adams Libby, LLC can help you determine which course of legal action is right for you.

As soon as you realize a GA will contest dispute attorney may be part of what is necessary, right, and required to achieve justice, it is essential you seek the advice of an experienced Atlanta, Georgia will challenge lawyer to dispute the validity of the decedent’s Georgia will. Acting fast may save your Georgia inheritance and the inheritance of others.

Undue influence is often suspected upon administration of the decedent’s estate, but in other instances when noticed early on, the person exerting undue influence can be stopped before a will is executed. The Atlanta, Georgia will challenge lawyers at Adams Libby, LLC are fiercely qualified to represent you in any Atlanta probate or estate lawsuit to invalidate a will. Our GA probate attorneys work throughout Atlanta and the more rural parts of Georgia.

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November 7, 2012

ESTATE PLANNING IN ATLANTA, GEORGIA -- AM I A CANDIDATE TO MAKE A WILL?

In my Atlanta estate law firm, our lawyers have a general rule in estate planning in Georgia is that every person should make a will. Unfortunately, it seems that the majority of the general public does not feel the same way and most people die without leaving a will expressing their last wishes. Many people think they don’t have anything to leave; but, more often than not, they are wrong. Some people think that you have to have children or be wealthy, suffering from a terminal disease, or elderly before it is time to make a will. There are even people who are afraid to sign a will and believe that it signifies a final act and others think that wills are written in stone and cannot be changed so they hold off making a will because they can’t decide how they would like to distribute their estate. It is a much better idea to have something in place and a will can be changed at any time. The execution of an individual’s will is a very emotional moment for some; but, if you keep in mind that it is a tool available to you to ensure that your assets are distributed in accordance with your wishes, then perhaps you can see it as a tool to ensure peace of mind.

Even if you do not have any assets, you should have a will in place in the event of your death; after all, none of us know the exact circumstances that will occur to cause our death. You might win the lottery and die from the excitement. In that event you may go from owning nothing to being very wealthy and leaving a large estate. Should you die in an accident, your estate can be greatly increased by the proceeds of a wrongful death law suit.

Your will is also a vehicle by which you can name the persons or financial institutions you wish to act as the guardians of your minor children and conservators of their estates. You can determine the terms of any trusts that may be established for their benefit.

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October 20, 2012

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

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.

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October 19, 2012

PREVENTION OF DISPUTES IN GEORGIA PROBATE COURT BY THE EXECUTOR OR ADMINISTRATOR – FORESIGHT, DETECTION, AND AVOIDANCE

Being an executor or administrator of a Georgia estate in probate court is no easy undertaking. In fact, as executor or administrator of a GA estate, you are stepping into a position ripe, ready and waiting for conflict and disharmony to develop among all the interested parties to the estate, or worse yet, parties that will use their influence to control others who do have an interest in the estate. To say the least, these matters are already emotional from the death of a loved one and now, as executor or administrator, you are in charge managing the often-greedy heirs or beneficiaries of the Georgia estate. At the very least, this can add substantial administrative and bureaucratic responsibilities to your life as well as significant anxiety and stress. Furthermore, these oftentimes come at a time when you may already be grieving and have your own affairs to manage. In almost all cases, this is further complicated by the significant administrative duties imposed by law on a GA executor or administrator and the fiduciary duties and liabilities that come with this position.

In most GA estates, both executors and administrators are frequently relatives or close friends of the deceased person (the decedent). This would seemingly be a plus; however, more often it turns out to be the starting place of many arguments, endless wrangling, power struggles and ultimately many GA Probate disputes, will contests and litigation proceedings. Many of these GA estate disputes and much of this GA probate litigation stems from the fact that many of the other members contesting the actions and alleged breach of the personal representative’s fiduciary duties are also frequently, family members, relatives, or close friends of the deceased person (the decedent). In fact, it is often the case that these family members, relatives and close friends stand to inherit assets of the Georgia estate or have some interest in the outcome of the distribution of assets.

Perhaps most importantly, acting as a personal representative gives you a fiduciary duty to the estate -- that is, you are legally responsible for ensuring that your financial decisions are made with complete information, according to the estate's best interests and as expeditiously considering the circumstances. This is the same fiduciary duty given to leaders of corporations, and like those leaders, you are legally liable for any lawsuit alleging that you have not met your fiduciary duties. This includes personal liability, which is beyond assets of the estate and not limited in any way, shape or form to the assets of the estate.

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October 4, 2012

FRAUD AND GEORGIA WILL CONTESTS – ATLANTA PROBATE LAWYERS PROTECT BENEFICIARY RIGHTS IN GEORGIA WILL LITIGATION

In my Marietta, and Atlanta, Georgia, Will Contest Law Practice, which includes Will Contest Litigation in Lawrenceville, the Buckhead Area, Dunwoody, Decatur, Sandy Springs, Kennesaw, Smyrna, Duluth, Cumming, Canton, Alpharetta, Roswell, and other Cities and Counties throughout Georgia, I counsel clients on many aspects of Georgia probate law; including Georgia Will Contests (also referred to as Georgia Will Challenges and Georgia Will Litigation). Once Georgia probate proceeding have begun, all interested parties have a determined amount of time to challenge an existing will, which has been offered up to the court for it’s authenticity and to be the will control the Decedent’s Estate.

A person challenging a Georgia will can do so under several common scenarios. The existence of a more recent will, incapacity of the testator, undue influence exerted on the testator, incorrect execution of the will and fraud are several scenarios that are commonly recognized reasons in Georgia for invalidating a Will. When contesting a Georgia Will based on fraud, the person filing the objection is required to prove that the deceased was deceived by fraudulent misrepresentation at the time the will was executed. This is also sometimes referred to as the Testator laboring under mistake of facts, which had the truth been known, the Testator would have not executed the Will or made a different will. Evidence of the motive or opportunity to commit fraud by itself is not sufficient to deem the will invalid. Proving the effect of the fraud on the testator is critical.

Under Georgia probate law, the Fraud necessary for contesting a Georgia will can be committed that either influences the facts that move the testator to draft the will in a certain way (inducement) or the act of fraud can directly affect the execution of the will. In the instance of inducement, a third party might convince the testator to leave assets to them under false pretenses. For example, a sibling might gain sympathy from his dying brother, the testator, citing imminent bankruptcy. If the bankruptcy is not real and the testator leaves property to his sibling in the will because of this lie, then the will can be contested under the scenario of fraud.

Execution of a will can be manipulated so that the will is deemed invalid. This type of manipulation in the execution of the will is considered fraud when intentionally done. Causing improper signature of a will by purposely misguiding the testator or witnesses during the signing of the will is one example of how this type of fraud can occur. Also an individual that is being left out of a will may try to prevent the Georgia testator from executing a will. This is also an example of fraud. Further, one of the most obvious examples of fraud in the execution of the will is forgery or removing pages from the will and replacing them with pages that have dispositions different than the Testator intended. Oftentimes, this is why you will see lawyers have the Testator initial each page of the Will and place the final (and only) set of staple in the Will after it has been duly executed and each page initialed. Further, some lawyers will seal the will in an envelope in such a way to ensure that if someone had gained access to the Will, there would be obvious tampering to the envelope the Will was put in immediately after executed.

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