Atlanta Probate Lawyer Blog

A person is qualified under Georgia Law to serve as a Georgia probate court appointed Guardian and/or Conservator of a proposed ward if such person is:

1. Over the age of 18 years of age;
2. A Georgia resident; or a non-resident who is:

(a) related by lineal consanguinity to the ward; (b) a legally adopted child or adoptive parent of the ward; (c) a spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone elated by lineal consanguinity to any such person; or (d) the spouse of a person otherwise qualified above; and

3. Having been convicted of a felony usually precludes you from being a guardian in Georgia. However, new trends allow the judge to evaluate the felony and its circumstances to determine whether the proposed guardian would do a good job in caring for the ward. By example, a felony conviction for marijuana possession a long time ago may be looked upon by the Georgia County Probate Judge as a learning lesson. And, since it did not involve stealing (or another crime of moral turpitude), then the proposed guardian may be determined by the Georgia County Probate Court to be a safe person and able to care for the ward in a high-quality manner. Lastly, this is true if the guardian and ward are closely related and/or have a close, respectful, and honest relationship.

Moreover, a Georgia county probate judge may give a felon who petitions the court to be guardian of the ward if they are related. This new trend shows the County Probate Judge's discretion in finding a qualified person to take care of the ward.

A Petition for appointment of a Georgia guardian and/or Conservator for the proposed ward will be filed with the GA County Probate Court in which the proposed ward is domiciled. This Petition requires either two Petitioners to sign the document or one Petitioner and the completed affidavit of a physician or psychologist licensed to practice in Georgia or a licensed clinical social worker, who has examined the proposed ward within 15 (fifteen) days prior to the filing of the Petition. In, Georgia, unless the alleged incapacitated person is indigent, the Petition must submit with a check to the GA County Clerk of Court for the filing fees. The filing fees vary slightly per each separate GA County Probate Court.

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As an estate lawyer in Atlanta, Georgia, one of the most common questions I am asked as an Atlanta estate administration attorney is how to stop Georgia estate heirs and beneficiaries from fighting with Georgia estate executors and administrators. Usually this question comes from the executor or administrator whose life has been turned upside down by the demands of their fiduciary duty or claims that they have committed a breach of fiduciary duty in Georgia. Most executors and administrators want to get through the process as efficiently and quickly as possible in order to return to their normal daily life. But there are other reasons to keep the peace when acting as an executor or administrator.

By actively limiting conflict during the proceedings, it is true that the estate will be distributed faster, but it will also be administered with more assets intact. When Georgia estate disputes arise, hearings, mediation, and litigation, is likely not far behind. Unjustified Georgia mediation, hearings, and litigation proceedings can cost precious time and wastes estate assets. The executor or administrator funding to defend this type of legal battle usually comes directly out of the assets of the estate, so the more time spent feuding, the less money is available to distribute.

Monetary and time issues aside, it is important to keep the wishes of the decedent in mind and preserve family harmony. I believe that most people write wills in part to limit infighting over estate assets. When people ask me about the benefits of a will, I am quick to state that preservation of family harmony and the legacy of the decedent are important reasons to have a will. By maintaining a transparent estate administration process between heirs and beneficiaries and executors and administrators, conflicts can be minimized and the decedent’s wishes can be honored. The executor or administrator can perform the required fiduciary responsibilities and properly keep beneficiaries and heirs informed while meeting all deadlines

By retaining an experienced Georgia estate administration lawyer, you can maintain the following:

• Preservation of family harmony

• Preservation of estate assets for distribution

• Lessen the time frame for estate distributions

• Avoid the stigma family infighting imposes

If you are executor or administrator of an estate, or these duties are pending, you should retain an experienced Georgia estate administration lawyer to assist you. You will appreciate the benefits and peace of mind you receive. You will also be able to feel confident in your actions as they are approved by your lawyer. Moreover, your lawyer will assist you in preparation of documents, explanation of the process to heirs and beneficiaries, and silence anyone who cries “foul.” At The Adams Law Offices, we are glad to assist you in full and let you take all the credit. We can also stay in the background in case some issues arise, which need to address immediately. As they say, “The Adams Law Offices has you covered.” No matter what your level of education, chances are you have not been an executor or administrator before. It is not an easy task and we are here to help. Please do not hesitate to Contact Us. If you have been in this situation before, then perhaps I am telling what you already know, that you need a skilled Georgia estate attorney to assist you.

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As a Probate lawyer in Atlanta, Georgia, I realize that terms that are commonplace in our Georgia Probate Practice, are foreign to the layperson and even non-probate attorneys. To a seasoned attorney, Georgia Probate-Estate Administration can be relatively straightforward when the Georgia Estate Proceedings do not involve siblings or relatives who argue, objections court appointments, the sale of properties or assets, or caveats – which is a legal word for “objection.” This type of calm and smooth Georgia Estate Administration Proceeding is rarely the case. Conversely, probate is not a simple a matter to the heirs, relatives, and close persons to the decedent. Most Georgia Probate-Estate Proceedings are emotionally charged where rises to unprecedented levels. This is also true for disputes between all parties in interest to the Georgia Estate Proceedings. Moreover, the protracted nature of the Georgia Probate Proceedings can take a heavy toll in terms of the time consumed and emotional strain.

Probate Related FAQs

(1) What is the duration of the probate process?

In some cases, an Estate Administration Proceeding can be completed in a year. However, a couple of years is the norm and you should prepare to be patient and not worry about the day-to-day Estate Administration to which you are an interested party. In fact, opening the estate usually takes a minimum of 45 days. This involves, inter alia, completion and filing of papers, fixing a date for the hearing and issuing notices, letters, bonds, etc., and assumes all parties are amicable.

(2) How does one deal with creditors?

Creditors of the deceased must be issued notices after the submission of letters. In this connection, the mandatory claim period is 120 days during which the creditors may come forth with their respective claims upon the estate of the deceased.

(3) What are the expenses involved?

Probate involves what in legal parlance are termed costs and fees. Costs are expenses related to filing for opening the estate (In the Georgia, the fees and expense are in the hundreds of dollars. Moreover, the fees and expenses vary greatly from county to county. Recently, the fees have been rapidly rising and I would not even venture to guess the fees for the purposes of any future reason), issuing notices, and appraisal of assets by the court-appointed probate referee. Legal Fees are an estate expense. However, if the Georgia Estate is riddled with infighting, caveats (“objections”), hearings, and more, the legal fees, cost, and expenses can be significantly more.

(4) How does one distinguish between executors and administrators?

The distinction is based on the simple premise that the two function in two different situations – the court appoints an executor in the case of a testate death (“the deceased had a Will”) and an administrator in the case of an intestate death (“the deceased had no Will”). Executors are issued “Letters Testamentary” while administrators are issued “Letters of Administration,” both Letters outlining their court-conferred powers in respect of the estate. The term personal representative can be used to refer to both executor and administrator. Executors, administrators, and personal representatives have a Fiduciary Duty to heir and beneficiaries of the Estate. The Fiduciary Duty is one of the highest duties imposed by Georgia Law.

(5) Are there any cases in which a probate can be bypassed?

Yes, probate does not apply to assets such as insurance, retirement, and bank accounts if they name a living beneficiary. These assets are said to pass outside or probate and are Non-Probate Assets. In addition, in the case of joint assets, probates can be bypassed in case of death of the first owner (e.g. in the case of a jointly held home or bank account). In the state of Georgia, this also extends to assets forming part of a living trust. These are the general provisions and the particulars may vary depending on the laws that shall apply on a case-to-case basis. It is rare that there an estate is completely probate asset free, so all decedent’s estates should explore the whether the probate process is necessary. Even in cases where the Georgia Probate Assets total less than $10,000.00, there is a Georgia Probate Proceeding, which can be filed requesting the Probate Judge to Order “No Administration Necessary.” Therefore, there is really no Georgia Estate that can pass without touching base with the County Probate Court in some way, shape, or form.

Starting off, any executor, administrator, or personal representative undertaking to probate a Georgia Estate should consider retaining an experienced probate lawyer to assist with the Probate Proceedings. First, the choice to retain a lawyer demonstrates that you want a fair-minded unbiased person involved with the Georgia Estate Administration. This also shows the other interested parties to the estate that you welcome transparency in the Estate Proceedings and all interested parties are welcome to any information concerning the Estate Administration. Taking this action goes a long way to calming fears and suspicions of the “self-dealing personal representative all heirs and beneficiaries fear.” Realistically, it takes a huge burden off your fears of inadvertently breaching your fiduciary.

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