Atlanta Probate Lawyer Blog

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.

Continue reading " WILL CONTESTS, GEORGIA LAW, AND YOUR LAWYER – WHEN AND HOW TO CHALLENGE A WILL " »

As an Atlanta Estate and Probate Attorney, many of my clients come to me for counsel during the difficult time following a loved one’s death. Confusion over how the Georgia probate process works and conflicts of interest between heirs and/or beneficiaries can make this process painful and complicated. During the Georgia probate process, assets from the estate will be distributed and any disputes between heirs or beneficiaries regarding estate assets will be resolved. The process of probate varies by state. In Georgia, the law is somewhat straightforward, but still extremely complicated for most any non-lawyer.

For a better understanding of the probate process, it is important to clarify a few commonly used terms:

• Probate: the court proceedings that prove a Will to be the last valid Will of the decedent – it is also the process of administering the decedent’s estate

• Decedent: a person who has died

• Estate: all of the decedent’s property, including personal property and real estate

• Heirs: in the absence of a Will, those persons who have a just claim to the property in the estate of the decedent

• Beneficiary: a person who is identified in the Will to receive property from the decedent’s estate

• Will: a signed, legal document that states how the decedent wishes to distribute his property after death

• Testate: when a person dies and did write a Will

• Intestate: when the decedent did not write a Will, or when the Will is invalid

• Executor: the person named in the Will to administer the decedent’s estate

• Administrator With Will Annexed: the person assigned by the court to administer the decedent’s estate when a Will exists, but has not named an Executor, or in the case that the Executor named is unwilling or unable to serve this duty

• Administrator: when there is no Will, this is the person assigned by the court to administer the decedent’s estate

• Escheat: in the case that no heirs make claims to all or some part of the property in an estate, the state will receive the unclaimed property

Georgia probate proceedings usually are held in the Georgia county where the decedent permanently resided at the time of death. The county probate court will verify that the will presented in the proceedings is valid and that it is the last will that was written by the decedent. Once the will is verified, or in a case where there is no will, the probate court will oversee the distribution of the estate’s assets. When the decedent dies with a will, the estate will be administered in accordance with the decedent’s wishes that are expressed in the will. Should the decedent die without a will, Georgia’s Intestacy Statutes provide the scheme for distribution of estate assets. This usually means that the surviving spouse and children will receive the percentages of property first, followed by parents, siblings, and other family members.

The time that the probate process takes can run between seven or eight months for simple estates, to several years for more complex estates. During the process, the executor or administrator will identify the assets in the estate, perform an appraisal of those assets and pay any debts and taxes owed by the estate. Only after these steps are completed can the remaining property be distributed to the heirs and/or beneficiaries. Disputes between the parties involved over how these duties are performed will lengthen the process. The normal expenses incurred in probate, including the payment of debts and taxes, are paid out of the estate’s assets. Legal fees are also usually paid from estate assets.

The clarity with which a will is written will affect the duration and outcome of the process. Working with a qualified Georgia Estate lawyer to define exactly how your estate’s assets will be distributed is critical. If you are named as Executor or Administrator of an estate, a lawyer can explain your duties under Georgia Probate Law, help you fill out court forms and send the required probate notices. An attorney can also help you to meet all court deadlines. When issues between heirs and/or beneficiaries seem likely, or when they do come up, an experienced Probate litigation lawyer should be consulted so that delays in the proceedings, and additional costs, can be avoided.

Continue reading " UNDERSTANDING GEORGIA ESTATE DISTRIBUTION AND PROBATE PROCEEDINGS " »

Georgia estate disputes can easily ruin relationships between family members. These types of issues include Georgia will contests and sticky situations such as the removal of a family member deemed unfit to be the executor of the will. We can all think of examples of famous estate disputes that have resulted in long drawn-out legal battles that last for years, even some that extend beyond the lifetime of the heirs. Due to the emotionally charged nature of probate hearings, when an issue comes to the surface during probate it is difficult to solve quickly without more emotional and financial damage to family members and a loss of estate assets.

Mediation is one alternative to allowing disputes to be resolved in a protracted probate trial. The Probate Judge will often prescribe a court ordered mediation to resolve conflicts between heirs and beneficiaries. This is done before the probate proceedings start or just after they begin, when conflicts have just come to the surface. During mediation the parties involved can air their concerns, present evidence and confront each other on the issues. Anything agreed upon between the parties during mediation is binding and will carry forward into the probate hearing. An experienced Georgia probate litigation lawyer can assist in this type of mediation by helping participants present their position on the issues.

There are some red flags to consider indicating that estate disputes are likely and mediation should be considered. These include multiple marriages during the life of the deceased, children who are left out of a will, preferential treatment of people outside of the family, special treatment given to certain children and family members (other than the spouse), recent changes to the will that cut out specific heirs and when the administrator or executor are slow to perform the fiduciary duties required of them. If these conditions present themselves, it is a good idea to consult with an Atlanta, Georgia probate attorney with expertise in estate litigation, who also has experience with dispute mediation. With good legal representation, all sides in the dispute can receive fair treatment and the probate process can move forward before the estate’s assets are spent.

Continue reading " ESTATE DISPUTES IN GEORGIA RESOLVED FASTER THROUGH MEDIATION THAN COSTLY LITIGATION " »

In my estate law firm practice in Atlanta, Georgia, I have seen the negative impact on many probate cases when financial instruments and valuable assets are set up to provide convenience for the primary owner. It is important to take proper care not only when setting up joint bank accounts, but also when assigning joint owners or beneficiaries to IRAs, 401(k)s, life insurance policies and real estate. Failure to correctly assign joint account holders to any asset or financial instrument under the counsel of a qualified estate attorney may result in disputes during probate proceedings. Setting up these instruments should be part of a sound estate administration plan. Likewise, if a dispute arises, you should retain an experienced Georgia probate law firm to represent you in any Georgia probate and estate litigation lawsuits concerning jointly titled assets.

Because jointly owned bank accounts, IRAs, 401(k)s, life insurance policies and real estate with a right to survivorship are considered non-probate assets, ownership of these assets is straightforward. As non-probate assets they are typically transferred directly to a joint owner or beneficiary and do not need to be distributed through the probate process when the primary owner dies. The problem arises when, in probate proceedings, heirs and beneficiaries disagree on how these assets were originally set up and what the deceased’s true intentions were, upon death, regarding the distribution of these assets.

Just as in the case of joint bank accounts, other assets can be set up where the primary and joint owner’s names are linked by the words “and” or “or.” The difference between these two designations is critical. Both account holders need to sign for all transactions when assets are set up with the “and” designation. When “or” is used, the asset can be manipulated independently by either party. Upon death, all assets will transfer to the joint holder when “or” is used and half of the assets will pass to the joint holder when “and” is used. Under Georgia probate law, when one of the joint owners dies, it is important to have the designation assigned that indicates the true intention of the relationship.

Many of these assets and financial instruments are originally set up with a joint owner or beneficiary for the sake of convenience, and it is not uncommon for heirs and beneficiaries to challenge the ownership of these assets during probate proceedings. An experienced Atlanta probate litigation law firm can represent you in fighting to acquire your inheritance as the decedent truly intended. Similarly, an experienced Atlanta probate attorney can create an estate administration plan that clearly states your true intention, so that your wishes are fulfilled and your heirs and beneficiaries receive the treatment that you desire.

Continue reading " GEORGIA ESTATE LAWYERS ENSURE THAT JOINT ASSETS ARE CORRECTLY DISTRIBUTED IN PROBATE PROCEEDINGS " »