Atlanta Probate Lawyer Blog

When a person dies owning property in a state other than the state where their assets are subject to probate, the out of state property is subject to a form of probate referred to as Ancillary Probate. The ancillary probate proceeding is additional probate process performed in connection with the regular probate proceeding. The difference is that the out of state assets are governed by ancillary probate proceedings and the probate laws of the state where the assets are located. Ancillary probate is usually required when a will exists, as well as when a person dies intestate, or without a valid will. In my many years as an Atlanta, Georgia Ancillary Probate Attorney, I have overseen numerous cases involving Georgia ancillary probate issues and proceedings.

As a Georgia ancillary probate lawyer, I have found that real estate is the most common type of estate asset that requires ancillary probate. Examples where Georgia ancillary probate issues occur, are when the deceased lived in another state, but died owning vacation property in Georgia. Also common, is a scenario where a decedent moved to another state toward the end of their life, but died owning a house or other property in Georgia.

Tangible personal assets can also be subject to and require ancillary probate proceedings. Examples of these assets are mineral rights, oil or gas rights, livestock, vehicles registered out of state, and other assets located and/or registered outside the home state, such as boats or aircraft.

When ancillary probate is required, it naturally delays the settling of the estate. Expenses to settle the estate also increase, since it is necessary to hire a “local counsel” in Georgia to handle the ancillary probate proceedings in Georgia.

Ancillary Probate proceedings are complicated by the fact that probate laws vary by state. Just like probate laws, intestacy laws also differ by state. As a result, when a will does not exist, or if it is found to be invalid, the heirs may be surprised to find out how property is distributed under another state’s probate laws. This situation can cause discord (and surprises) among family members and other interested parties.

Because state probate and intestacy laws vary widely, it is necessary to consult with an experienced Georgia ancillary probate lawyer. Likewise, if there is a Georgia dispute or litigation involving ancillary probate, it is essential to seek the assistance of a Georgia ancillary probate attorney experienced in probate dispute resolution and estate litigation of ancillary probate assets.

Continue reading " ANCILLARY PROBATE PROCEEDINGS IN GEORGIA REQUIRE THE “LOCAL COUNSEL” OF GEORGIA ANCILLARY PROBATE LAWYERS " »

In my many years as a Georgia probate attorney, I have come to believe that no matter how big or small an estate, Georgia will contests are here to stay. The typical will contest usually arises from some perceived unequal disposition of estate assets. Most of the time, distraught heirs, or beneficiaries will have their own ideas and theories regarding the unequal or unfair disposition of estate assets. However, they leave it to the Georgia will litigation lawyers to find the legal terminology and reasoning to substantiate their claim(s). While it seems many Georgia lawyers and layperson are rather indifferent to will contests and see them as nothing more than greed at its worst, I feel and see something totally different.

In my Georgia Probate Litigation law firm, I find a great amount of unique justice in seeking out a defendant who has taken it upon himself or herself to engage in illegal activity to cause a person to alter their free and voluntary making of their will, and thus alter the disposition of their estate. Thus, while the biggest stake in the result of Georgia will contest is without a doubt monetary, it is significant to convey that relationships between family members may be damaged. Even in tight-knit families, it is common to see infighting over estate assets due to emotional issues such as who was a certain parent’s “favorite” child.

To ensure that your assets are distributed as you wish, it is wise to implement a few strategies, such as the following:

• Avoid using joint accounts that can disinherit children inadvertently: Many elderly people put a child or close relative on bank accounts for easy access and routine handling of affairs. Joint accounts pass directly to the joint account holder upon death of the primary account holder, so it is better to set up financial powers of attorney that give others the ability to help you without them being joint property owners.

• Choose an impartial executor to administer your will: Commonly family members are asked to administer wills, which can create damage to family relations. A wise choice is to use a bank as executor. While this does carry a cost, many disputes can be avoided and self-dealing by the executor will not be a problem.

• Try to treat children equally in the will: Unequal distribution of estate assets will likely cause friction between the children. This is because children often believe that their inheritance is a direct reflection of their parents’ love for them. When a child feels left out or cheated, he is likely to imagine that one or more siblings manipulated the parent. It is possible that this will result in a will contest.

• Discuss big inheritance issues before they are written into the will: You should not need to discuss every detail of your will within your will. However, any unusual distributions in your will should be explained and documented. Disclosing these items in advance allows for your children to assimilate the information to understand the motivation behind the decision. Avoid going into detail about your decisions and make sure it is done with the assistance of a professional. Doing so may hurt your child’s feelings, which could trigger a will contest later on during probate proceedings. However, be careful not to induce an environment where there are attempts to influence you because of being open about your will and what will happen when you die. Be careful, this theory has a double-edged twist if proper protocol is not followed. (NOTE: Doing this with assistance is a must).

• Give sentimental gifts to your children while you are alive, and equally: Let each heir know what you are giving to the other heirs. This strategy will allow you to see your heirs enjoying these precious items and can prevent Georgia probate disputes. This can also have tax benefits

Continue reading " WILL CONTEST LAWYERS IN ATLANTA, GEORGIA, PROPOSE STRATEGIES TO REDUCE THE CHANCES OF A WILL CONTEST(S) DURING GEORGIA PROBATE " »

In my Atlanta, Georgia Probate Law firm, I see many instances where beneficiaries and heirs have waived their rights granted by Georgia law during probate proceedings. One of the areas that this occurs in is in relation to the inventory and accounting of estate assets. Executors and administrators are required to provide a complete inventory and accounting of the estate’s assets and liabilities within approximately six months from their appointment. Georgia probate law does not specifically require that six months is a strictly set period for an executor or administrator to complete this task. Thus, depending on the complexity and circumstances surrounding the estate, the court may allow more time for the task to be completed.

To compound the frustration of not knowing the exact timing to completion of this important step in the Georgia probate proceedings, beneficiaries and heirs of a Georgia estate oftentimes unknowingly waive their rights to have an inventory and accounting prepared. Administrators and executors are commonly trusted family members or associates of the deceased, and are not questioned fully when producing documentation requiring signature by the heirs and beneficiaries. In fact, most times these documents include releases and waivers that give the Georgia estate's executor or administrator significant leeway and discretion in performing their duties.

As a Georgia estate heir or beneficiary, whenever presented with legal documentation to sign during probate proceedings, it is important to retain an experienced Georgia probate lawyer to review the documentation and guide you in making the proper choices you are comfortable with. Express caution should be taken if you are asked to sign legal documents in front of a witness or Georgia Notary Public. Being pressured, even in a good-natured way, to sign documentation without having your lawyer review it first, should always be considered a red flag that indicates a potential issue. Under Georgia probate law, you are expected to have read and understood the documentation before signing and have the right to review the impact of signing the documents with a Georgia probate lawyer first. Should you not understand the documents your are presented with to sign, Georgia probate law states that it is incumbent upon you as an heir or beneficiary to an estate in Georgia, to seek out the meaning and ramifications of signing these documents. Some consider this a rather harsh stance, however, when the ball is in your court, you must take full advantage of this opportunity.

IN SHORT, YOU SHOULD PREPARE FOR THE WORST, AND HOPE FOR THE BEST!

In my many years as an Atlanta, Georgia probate attorney, I can emphatically state that I have never come across a Georgia beneficiary or heir who was disappointed because they were extremely cautious and/or overly prepared for any Georgia estate proceeding.

The fact is, you have certain rights as a beneficiary or heir involved in a Georgia probate proceeding. Always consult with a skilled Atlanta probate attorney before you sign any documentation wherein you might waive your rights under Georgia probate law. I would also be extremely hesitant to feel comfortable and trusting of the advice the executor or administrator’s attorney gives you. Remember, everyone involved in the estate proceeding has their own agenda. Likewise, you should have your own lawyer to assist you.

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In my Atlanta, Georgia Probate Law Firm, I have represented many clients who require legal counsel well into probate proceedings. While, this is can be due to a lack of knowledge of the Georgia probate process, it can also stem from a number of other reasons such as negligent management of estate assets, self dealing, misappropriation of estate assets, or even intentional mismanagement of estate affairs. Over the course of my legal career, I have decided the list of reasons is endless.

Many of my clients are Georgia executors and administrators who have been assigned the difficult task of distributing the deceased’s estate. Confusion surfaces as these individuals face a complex set of fiduciary responsibilities (commonly referred to as fiduciary duties under Georgia law) and legal tasks, including the filing of legal documents to strict deadlines and other stringent legal requirements. Retaining legal advice from a Georgia probate law firm early on in this process is essential to successfully and efficiently collecting, managing, and distributing the estate’s assets.

Identifying, finding and gathering assets is one task that a Georgia executor or administrator is responsible for during the probate process. Transferring assets into the estate and assuring that payments are made on behalf of the estate are also duties that must be handled. In the process, it is the executor or administrator’s fiduciary duty to keep beneficiaries, heirs and any interested parties informed of certain milestones. In addition, court deadlines and the filing of legal documentation can be confusing. If any of these duties are incorrectly handled, despite the best intentions of the executor or administrator, disputes can develop between the respective parties, which have an interest in the estate. In a worst-case scenario, the executor or administrator can be held personally liable for mistakes make during the proceedings.

Without experienced counsel from a Georgia probate litigation attorney, probate proceedings can not only cause infighting among interested parties, but also slow the process down to the point that the proceedings drag on for an extended period. As time elapses and infighting intensifies, litigation becomes more likely. Heirs, beneficiaries, and interested parties usually cause the initial disputes. Oftentimes, Georgia probate disputes are sent to mediation ordered by the Georgia probate court. This has proven an effective way to resolve minor disputes without court proceedings or litigation. As executor or administrator, the nature of your primary fiduciary duty is to protect the estate’s assets and act in the best interests of all interested parties to the estate. So working to avoid, mitigate, and mediate conflict between parties is crucial and will speed up the process and likely keep you distanced from any breach of fiduciary duty accusations.

Continue reading " THE CHALLENGING ROLE OF EXECUTOR OR ADMINISTRATOR IN GEORGIA PROBATE PROCEEDINGS " »

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 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.

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