Atlanta Probate Lawyer Blog

As an Atlanta, Georgia, Dispute Attorney for Will Disputes; Atlanta, Georgia, Lawsuit Litigation Lawyer for Will Validity; ATL, GA Will Contest Attorney; and, Atlanta, North Georgia Will Challenge Lawyer -- many people are often confused how THE ADAMS LAW FIRM uses undue influence as a defense to issues related to Heir and Beneficiary Will Contests, Probate Disputes, Estate Challenges, and ATL, GA, Probate Litigation.

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!

The Adams Law Offices 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.

Continue reading "WILLS, TRUSTS AND ESTATE DISPUTE LAWYERS IN ATLANTA, GEORGIA USE UNDUE INFLUENCE AS A DEFENSE IN WILL CONTEST, ESTATE LAWSUITS, PROBATE DISPUTES, AND MORE – HERE IS HOW!" »

As a Georgia will dispute lawyer in Atlanta, Georgia, I surmise that if you are creating your will, you will likely want to reduce the chances of your loved ones squabbling over your estate and ending up in lengthy court battles. Avoiding a Georgia will contest, however, begins the moment you start to contemplate making your will. At The Adams Law Offices, our Atlanta will dispute attorneys can help minimize confusions surrounding your will and draft a will that will distribute your estate exactly as you desire, without the risk of will contests arising. After all, if a will is found to be invalid or thrown out, then you risk your estate being distributed according to Georgia law, also referred to the Georgia Laws of Intestacy.

GOOD DRAFTING AND PLANNING

It is crucial to hire an Atlanta will lawyer with the experience and skill needed to draft a solid will document. If you have a significant amount of wealth to distribute, you need to be careful about "disinheriting" anyone. Disinheriting family members, no matter the reason, usually sets the grounds for will challenges and disgruntled family member arguments. It is best to divide your estate accordingly.

CONSIDER GIFTING ITEMS BEFORE YOUR DEATH

It is wise to consider giving relatives and loved ones valuables and monies ahead of time, to avoid any arguments and challenges. The more "lifetime giving" you can engage in, the better off you will be. Consider establishing trusts and other such funds for beneficiaries.

INSERT A NO CONTEST CLAUSE IN YOUR WILL (OFTEN CALLED AN
"IN TERROM" CLAUSE)

You can insert a "no contest" clause in your will document that will prevent heirs from challenging your will's validity in court. While it is still possible to challenge this clause in court, it may help decrease the likelihood of a disgruntled heir contesting your will.

CONTACT AN EXPERT IN ATLANTA WILL CONTESTS, WILL DRAFTING, AND GEORGIA PROBATE

At The Adams Law Offices, we understand the complications that surround wills and estates. As such, we can help you prepare for the future and create a will that is designed to divide your estate in accordance with your wishes and desires. If you are concerned about the possibility of a will contest, call us today for a consultation. The Atlanta will contest lawyers at The Adams Law Offices can help you determine which course of legal action is right for you.

Continue reading "FIND ANSWERS FROM ATLANTA WILL DISPUTE LAWYERS RE: HOW TO AVOID A WILL CONTEST – ALSO KNOWN AS WILL DISPUTE, WILL CHALLENGE & WILL LITIGATION)" »

As an Atlanta, Georgia Petition for Inventory and Accounting Lawyer, I see many clients who have all but given up discovering what happened to the assets and monies of a Georgia Estate. They erroneously believe this because they have signed away their right to an Inventory and accounting. In the alternative, they believe they are not entitled to an Inventory and Accounting because the language in the will explicitly states one is not required. If this is your situation, you are in luck!

Georgia probate law provides that you can renounce your waiver to production of an Estate Petition for Inventory and Accounting in Georgia. Georgia law also states that language in a Georgia Will that an Estate Petition for Inventory and Accounting is not required to be produced is for convenience purposes. Any holding to the contrary on both of the above-referenced would be tantamount to a “license to steal” for any administrator, executor, or personal representative (Collectively referred to as “Fiduciary” or “Fiduciaries” of a Georgia Estate).

If properly requested, the Georgia Probate Court will issue a “Rule Nisi” (a “Court Order”) for the administrator, executor, or personal representative to appear in court at a formal hearing and state why an interested party’s request for a formal and complete “Petition for Inventory and Accounting” should not be produced. Guidance of an experienced Atlanta, Georgia probate lawyer is almost essential when undertaking this request in an estate proceeding.

It is important to enter into requesting a Petition for Inventory and Accounting appropriately. First, in my Atlanta, Georgia probate practice, I find it is a best practice to make a formal request on the administrator, executor, or personal representative through detailed demand letter sent to their counsel, or directly to the Fiduciary if they do not have counsel. In my numerous years of Georgia probate litigation experience, I have found that it is prudent to attempt to resolve the issue without court intervention. While necessary, I have found that such demand rarely satisfies the heir or beneficiaries making the request. Second, this demand will likely have a “knee-jerk” reaction causing the administrator, executor, or personal representative to cease any correspondence with the heir or beneficiary and remain silent. Furthermore, it oftentimes elicits the losing argument that the heir or beneficiary has waived their right to such and inventory or accounting by signing it away on the Estate’s “Letters Testamentary” or “Letters of Administration” issued to the Fiduciary. The other losing argument by the Fiduciary is that the language in the will explicitly states they are not required to give or prepare one. Again, these are both losing arguments. Do not be surprised if you see this argument made by an attorney representing the Fiduciary. This is a finite area of Georgia probate law and many non-probate lawyers are not privy to this rule. On another note, such requests should not be done to offend the Fiduciary, or for some other non-legal and legitimate reason. Remember, filing a Georgia Petition for Inventory and Accounting is tantamount to showing a lack of trust in the Fiduciary, questioning their moral principles, and making an implied statement that they have stolen, squandered, or abused estate assets. This is a serious accusation.

In some cases, conflicts surface when executors, administrators, or personal representatives 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. Conversely, many times executors, administrators, or personal representatives have breached their Fiduciary Duties. Under these circumstances, they are unable to provide an accurate inventory and accounting. This happens more often than one would like to think and seems to be happening more frequently in these tough economic times.

If you are an heir or beneficiary who feels the administrator, executor, or personal representative has breached their Fiduciary Duty, please do not hesitate to contact Our Firm. We will properly hold the Fiduciary accountable and do our best to return the estate to its previous condition or make the Fiduciary make equally satisfying amends. Many cases of Breach of Fiduciary Duty are serious and involve theft of estate assets, self-dealing, misappropriation of funds, and worse. For this reason, it is important for executors, administrators, or personal representatives (Fiduciaries) in this situation, to retain the service of an experienced and Georgia probate lawyer who can assist in identifying a breach of fiduciary duty, or just plain bad estate handling by the Fiduciary. In the latter case, it may be best to have this Fiduciary removed in favor of another.

Continue reading "PETITION FOR INVENTORY AND ACCOUNTING -- GEORGIA PROBATE LAWYERS CAN COMPEL PRODUCTION OF THIS DOCUMENT DESPITE A SIGNED WAIVER, OR LANGUAGE TO THE CONTRARY IN THE WILL" »

In my Atlanta, Georgia Probate Law practice, I counsel many clients on the procedures that Georgia’s probate law dictates. Heirs and beneficiaries frequently ask questions about the duties of personal representatives in the probate process. A personal representative is either named in the will as an executor (and usually called an executor as opposed to a personal representative), or appointed by the court as an administrator. An administrator is appointed when no will exists, if an executor was not named in the will, or in the case that the named executor is unfit to serve. Personal representatives have a fiduciary duty to perform the required tasks of probate in a way that treats heirs and beneficiaries fairly. Nevertheless, personal representatives are almost always referred to as an executor or administrator. In short, an executor or administrator is a personal representative and the Official Code of Georgia gives them this title. What is more, is that personal representatives must give an inventory and/or accounting to heirs or beneficiaries who have a legitimate concern or reason to know about the estates assets.

However, as a Georgia Probate, Wills, Trusts, and Estates Lawyer, what is problematic to me when it comes to an executor or administrator, --

Whether I am working in Sandy Springs, as a “Sandy Springs Probate Lawyer” or a “Sandy Springs Will Contest, Trust Litigation, or Estate Administration Lawyer”; in the Buckhead Area, as a “Buckhead Probate Lawyer” or a “Buckhead Will Contest, Trust Litigation, or Estate Administration Lawyer”; in Fulton County as an "Atlanta Probate Lawyer” or an “Atlanta Will Contest, Trust Litigation, or Estate Administration Lawyer”; in Gwinnett County as a “Duluth or Lawrenceville Probate Lawyer” or “Duluth or Lawrenceville Will Contest, Trust Litigation, or Estate Administration Lawyer”; in Forsyth County as a “Cumming, Georgia Probate Lawyer” or a Cumming, Georgia Will Contest, Trust Litigation, or Estate Administration Lawyer”; in Cobb County as an “Smyrna, Acworth, Kennesaw or Marietta Probate Lawyer” or a "Smyrna, Acworth, Kennesaw or Marietta Will Contest, Trust Litigation, or Estate Administration Lawyer”; and/or last but not least (in order to shorten this example”), in DeKalb County as a “Decatur Probate Lawyer” or a “Decatur Will Contest, Trust Litigation, or Estate Administration Lawyer”

-- is that there are so many situations where the heirs or beneficiaries do not hire a lawyer and demand an inventory or accounting merely because the Will or Letters of Administration state that the executor, administrator, or personal representative is relieved from performing this duty. --

GEORGIA PROBATE LAW HOLDS THAT DESPITE WHAT THE WILL, LETTERS TESTAMENTARY, OR LETTERS OF ADMINISTRATION STATE WITH REGARDS TO GIVING AN INVENTORY OR ACCOUNTING, IS THAT AN EXECUTOR, ADMINISTRATOR, OR PERSONAL REPRESENTATIVE, MUST GIVE AN ACCOUNTING IF AN HEIR OR BENEFICIARY PROPERLY DEMANDS ONE.

The general list of tasks of Georgia personal representatives includes taking control of the estate’s assets, paying off the estate’s debts and administration expenses, selling estate assets to pay debts and expenses (or to distribute assets more efficiently), filing tax returns on behalf of the estate, distributing assets to beneficiaries and heirs, filing any required reports (including an inventory and accounting), and applying for discharge from office. The first step of taking control of the estate’s assets is critical. In this step, the personal representative must identify, locate, and value the estate’s assets. Without this information, no determination can be made regarding how to distribute the estate and the probate process would stall.

During the stressful time surrounding the death of a loved one, friend, or business associate, it is common to lack the focus necessary to deal with probate proceedings. Under stress, beneficiaries and heirs may sign documentation without the proper legal review, which can cause them to waive certain rights. The right to an inventory and accounting of estate assets is one of the rights that is sometimes waived unknowingly.
Even when a personal representative succeeds in getting an heir or beneficiary to sign a waiver that forfeits their right to an inventory and accounting, it is important to know that the waiver can be renounced afterward and an inventory and accounting can be demanded. Once you have waived this right, it is important to retain an Atlanta Probate Lawyer to assist you in acquiring an inventory and accounting that is true, accurate, and complete.

To renounce this type of waiver, an experienced Georgia probate attorney can assist in filing a petition for inventory and accounting that forces the personal representative to release this information. Another way that heirs and beneficiaries are left out during the probate process is through the instructions given in the will. Sometimes wills state that the executor is not required to give an inventory and accounting to heirs and beneficiaries. While this may be included in some wills as a result of undue influence over the testator by a third party, heirs, and beneficiaries do have rights under Georgia law to protect against this type of self-dealing. Again, a petition for inventory and accounting can be filed that will give the heirs and beneficiaries access to the asset information.

Continue reading "FIND THE BEST ATLANTA PROBATE LAWYER TO FILE A PETITION FOR INVENTORY AND ACCOUNTING IF YOU ARE CONCERNED ABOUT ESTATE ASSETS: GEORGIA PROBATE LAW OVERRIDES INSTRUCTIONS THAT THERE IS NO NEED TO GIVE AN INVENTORY OR ACCOUNTING TO HEIRS OR BENEFICIARIES" »

The Atlanta will contest defense lawyers at The Adams Law Offices are experienced in defending clients in disputes over the provisions of wills and administration of estate assets. Parties that can be defended in a will contest include the estate, beneficiaries, heirs or personal representatives. But it is usually heirs or beneficiaries who challenge a will, especially if they are slated to receive less from the estate than what they had originally anticipated. Once notice of the death or petition to begin probate proceedings is served, any parties interested in filing a will contest may come forward. The Adams Law Offices files Georgia Will Contests Caveat Petitions and just as often, their Atlanta Office defends Will Contests. As such, whatever role we engage on behalf of our client in will contest litigation, you can be assured, we know what opposing counsel is thinking and what their objectives are. Oftentimes, our Atlanta, Georgia will contest defense lawyers use tactics such as mediation, enhanced discovery, to catch opposing counsel of guard and to throw the theory of their case off balance, oftentimes, making them start over or think again about whether contesting the will in question.

Many conditions can provoke a Georgia will contest, including:

• The Testator’s Mental Capacity - if the deceased was not considered to be of sound mind and body when the will was executed

• The Imposition of Undue Influence on the Testator - if a third party a suspected of coercing the testator into executing a will that was not his true intention

• An Improperly Executed Will - if the will was not signed under the proper procedures, for example signed in the presence of the correct number of witnesses and in front of a notary public, or if any witnesses to the will are named as beneficiaries in the will

• Rights of a Surviving Spouse or Minor Child - the law mandates a statutory minimum of the estate to be awarded to a surviving spouse or minor child

• The Existence of Joint Accounts - joint accounts may have been set up for convenience only and may not express the wishes of the decedent to pass those assets on to the surviving account holder

• Poor Inventory and Accounting of Estate Assets - beneficiaries and heirs may question how the personal representative identifies, values and accounts for estate assets

• Unusual Gifts Made Before Death - any questionable gifts made by the decedent before death may cause heirs and/or beneficiaries to contest the will

• Breach of Fiduciary Duty by the Personal Representative - wrongdoing or negligent behavior during the administration of the estate

For testators, the key to reducing will contests is the development of a good strategy of asset distribution. It is important to remember that the legal costs of will contests are paid for out of estate assets. And besides the monetary cost, these disputes can delay the distribution of assets for months and even years. Because will contests are not easily won, Georgia personal representatives sometimes offer a monetary settlement to the challenger to minimize the cost and time that will be required to close the estate. Gifting portions of your estate before death will minimize the assets to be distributed through probate, thereby reducing the chance of will contests. Creating a trust is another way to leave assets outside of probate. Upon death, the assets in a trust are transferred to beneficiaries outside of probate, and as such will not be scrutinized by the parties involved in the probate proceedings.

At The Adams Law Offices our attorneys are qualified in all areas of probate court litigation, probate court law law, and will contest law. Contact us today to discuss how to leave a lasting legacy that honors your wishes and protects your loved ones at (404) 467-8611 or 1-877-412-3267. We can also be contacted by sending us a confidential message through our “Contact Us” form on our website. The Firm’s main office is conveniently located in the Buckhead section of Atlanta and we have a second office located in Marietta in Cobb County, near the intersection of Paper Mill Road and Johnson Ferry Road. You can reach us at the Cobb County, Marietta Law Office by calling (770) 952-1008.

Most successful Atlanta will challenge lawyers know every beneficiary will go to great lengths to challenge the mandate of the decedent’s will, but will they risk it all? The answer is likely no.

As a will probate defense lawyer in Atlanta, Georgia, I have represented numerous clients in different types of will contests. Thus, I know it is especially true that most will contest cases involving undue influence usually settle on an agreed amount, rather than letting the case come to an all or nothing verdict. This is because human nature seems to inevitably leave someone with something substantial than one party with nothing and a great deal of embarrassment and fear.

Remember, there is nothing greater than an exceptional Atlanta, Georgia Will Contest Lawyer when the need arises to deflect a Will Contest/Challenge. However, the following are some points to follow and not about the occurrence of undue influence:

• Undue influence occurs when the influencing party overcomes the decedent’s free will. This type of strong influence occurs when there is a confidential relationship between those involved and the testator cannot ward off the greater mental capacity of the influencing party. Thus, the confidential nature of the relationship between parties is a key factor.

• 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.

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

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

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

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

• the will appears to have been influenced

Continue reading "FIND AND RETAIN A WILL OR INHERITANCE LAWYER IN ATLANTA, GEORGIA – SUCCESSFULLY DEFENDING WILL CHALLENGES, LAWSUITS, AND CONTESTS " »

As an Atlanta Fiduciary Dispute Lawyer, I often come across persons who believe that once someone signs a Georgia Power of Attorney, then it’s over and all control has been surrendered to the person designated. It’s not that simple.

In Georgia, Power of Attorney Abuse is common and a terrible problem. Oftentimes, family members, hired help, and other persons take advantage of elderly or disabled persons through a Abuse or Misuse of a Power of Attorney. The Georgia Supreme Court the Abuse of a Power of Attorney in Greenway vs. Hamilton

As an Atlanta Power of Attorney Abuse Lawyer, I have seen many different schemes to use a Power of Attorney in an unlawful manner. A common theme is the “conversion”, or misappropriation assets using a Power of Attorney, before these assets become part of an estate. This is because assets of an estate are usually much more heavily guarded by the heirs and beneficiaries.
If you believe a Power of Attorney is being abused, there are several options you can take. First, you should seek out a qualified Atlanta, Georgia Fiduciary Lawyer to assist you in your undertakings. Some options your attorney can assist you with are as follows:

• Filing a complaint with adult protective services

• seeking a guardianship and conservatorship in probate court

• Confront the person abusing or misusing the power of attorney

• Talk to other family members about the situation

• Retain an experienced Fiduciary Law Lawyer

TAKE ACTION: THERE IS NO SUBSTITUTE FOR SEEKING LEGAL ADVICE AS SOON AS YOU KNOW ABOUT, OR SUSPECT, ABUSE OF AN ELDERLY OR DISABLED PERSON THROUGH THE ABUSE OR MISUSE OF A POWER OF ATTORNEY

First, a Power of Attorney is only valid if it is executed in compliance with Georgia law.
It must be in writing and properly dated. The party who holds the Power of Attorney has a Fiduciary Duty.

The person signing the document must be legally competent at the time of signing. When the person signing the document has dementia or Alzheimer’s or similar conditions, medical records and opinions from doctors and experienced elder law attorneys can be ways to establish competence.

Second, even with a valid Power of Attorney there is a Fiduciary Duty in Georgia to act in the best interests of the principal who signed over their POA. Thus all decisions must be based on what is best for them, not what is most convenient for the designee (aka Agent or Attorney-in-Fact).

For financial decisions, the legal duty requires the designee to, at the very least, refrain from self-dealing. The designee has a Fiduciary Duty to manage assets prudently with the goal of helping the principal who owns the assets. When the principal has significant assets, following the advice of a credentialed, knowledgeable, and ethical financial planner may be essential. It is also helpful to have an Atlanta, Georgia elder law attorney knowledgeable about spotting unsuitable investments review financial plans, recommendations, and decisions.

Continue reading "POWER OF ATTORNEY ABUSE AND MISUSE LAWYER SAYS POA ABUSE IS A BREACH OF FIDUCIARY DUTY WHICH MUST BE QUICKLY STOPPED" »

Yes, I am an Atlanta, Georgia, Probate Attorney, but also a consumer. As such, I want you to consider a simple task like buying a cell phone. You ask your friends for advice, read reviews online, ask experts for recommendations, and then make the purchase. My question is, if you make such well-informed decisions for something as menial as buying a cell phone, while hiring an attorney in Georgia, do you do the same? I am sure most of you would respond negatively to that. Well, let me tell you then what important things you should have in mind if you are planning to hire an Estate Litigation Lawyer in Georgia. I want you to make a well-informed decision, as legal services are costly, much more costly than upgrading your $200 or $400 iPhone early.

Ideal Qualities of an Atlanta Will Contest, Estate, and Probate Litigation Lawyer in North Georgia

• In case you are need of services of a Probate Lawyer in Georgia, the first thing you should do is to conduct some background research on the legal professional you are going to hire. Statistics suggest that usually the most advertised lawyers are the ones who are hired. So what is wrong with that? Well, no doubt, these lawyers are well advertised, but once you hire such a lawyer, your case is usually handled by some other Atlanta Attorney in Georgia. And, if you are wondering why this is so, the answer is, the Atlanta, Georgia Probate Lawyer you initially contacted is making money just by referring you to some lawyer whom you know nothing about. You may even not know if the referred lawyer in Georgia is competent enough to handle your case and whether your case is his specialty. My suggestion is, hire someone who specializes in the specific practice areas and does not refer you to someone else.

• Another important factor that cannot be overlooked under any circumstances is education. Top law schools are difficult to get into, and those who are educated at top law schools usually are better lawyers since they have been tested by outstanding lawyers themselves, with the knowledge on how to prepare for sizeable cases. Thus, you should or could ask where this lawyer was educated. Of course, this is not everything; a lawyer from the finest school(s) who seems unmotivated or uninterested could have a weak work ethic, among other things. This is an important factor to contemplate.

• The third most important factor to be taken into consideration is experience. Becoming qualified by acquiring education is one thing, but applying that knowledge in the real world to derive results is more important. The more experience your lawyer has, the chances of you winning the case becomes higher. The logic is, an experienced lawyer has gone through numerous critical situations in courtrooms. With experience, she will draw inferences from earlier cases to make your case stronger. Now the experience should not be limited to litigation. The lawyer you are hiring in Georgia should have actual trial experience. In addition, do not forget to ask what their success rate is. If you happen to be their first case, you should study their sharpness and ability to communicate, among other facets.

• Though this factor is last, in no way it should be treated as the least important. In very simple words, hire a lawyer with whom you feel comfortable with; like him and trust him. If you receive negative vibes, or just are not sure, find someone else. But under no circumstances should you hire a lawyer in Georgia who is not cordial and does not know how to listen. Your lawyer should raise your confidence level and not the other way round.

Information to Follow Accordingly in Hiring an Atlanta, Georgia Probate Lawyer
Armed with this knowledge, the chances of you hiring a winning lawyer in Georgia has just been magnified.

At The Adams Law Offices, , you will find attorneys who exemplify what you should be looking for in a law firm. In addition to having superior academic credentials and real-world legal experience, our business attorneys are innovative and think both inside and outside the box. In addition to providing high-caliber legal representation, our firm works to keep the cost of our legal services affordable. Above all, we work hard to help you meet your goals in a focused range of legal practice areas.

At The Adams Law Offices, you will find attorneys who exemplify what you should be looking for in a law firm. In addition to having superior academic credentials and real-world legal experience, our business attorneys are innovative and think both inside and outside the box.

In addition to providing high-caliber legal representation, our firm works to keep the cost of our legal services affordable. Above all, we work hard to help you meet your goals in a focused range of legal practice areas.

Continue reading "FIND AND HIRE THE BEST ATLANTA PROBATE LAWYER – FACTORS TO CONSIDER TO RETAIN AN EXPERT GEORGIA PROBATE ATTORNEY – AN INSIDER’S VIEW" »

As an Estate Litigation Lawyer in Atlanta, Georgia, one of my duties when retained in a Georgia probate litigation case is to determine who is entitled to the estate assets of an individual after his or her death (the “decedent”). During this process, the assets are collected, debts are paid off, and any remaining property in the estate is distributed according to the deceased’s will. If the individual dies intestate––that is, without a will––then state law determines who receives the remaining assets.

The Georgia probate laws of intestacy are intended to ensure a fair distribution of the property to heirs of an estate. Likewise, the distribution of assets under a will is intended to distribute assets according to the wishes of the decedent. However, occasionally assets are improperly distributed by an executor or administrator as a result of undue influence, fraud, coercion, negligence, or other unlawful means. This improper distribution of estate assets is often done on purpose and constitutes unlawful actions of an executor or administrator and is a breach of their fiduciary duty. To prevent these unlawful actions, Georgia Constructive Trusts can be created which attach to the asset(s) and hold them in trust for the rightful beneficiary. Constructive Trusts are an especially effective equitable remedy to prevent the squandering of assets through self dealing, conversation, misappropriation of funds, and more.

A Constructive Trust can be implemented when a representative is appointed who has a fiduciary duty to fairly distribute assets to beneficiaries or heirs of an estate. This representative is responsible for collecting the estate’s assets, determining their value, and, if necessary, liquidating them in order to settle the estate’s debts and to more easily distribute property. The representative’s near-absolute power is what makes willful wrongdoing or mistake in distributing assets possible. Constructive Trusts can remedy these unlawful and wrongful distributions.

Continue reading "ATLANTA ESTATE LAWYERS USE CONSTRUCTIVE TRUSTS TO PROTECT ESTATE ASSETS FROM CONVERSTION, MISSAPROPRIATION, BEING SQUANDERED, LOST TO “INNOCENT PARTIES”, ETC." »

In my practice as an Atlanta, Georgia probate lawyer, our firm has found that many clients involved in Georgia probate proceedings reside out of state or out of the country. Thus, they are likely are at a disadvantage concerning their particular legal situation and ability to be an intimate part in the Georgia probate proceedings in which they are involved. Please know you are not alone. We will ensure that your voice is heard and that all legal filings are made timely on your behalf. We will also ensure that you are not at a disadvantage with respect to the legal advice you receive. You will be quickly provided with documentation and information on all matters relevant to your case should this be your desire. Our lawyers and paralegals often e-mail entire files to clients via our scan and e-mail capabilities. In fact, you will likely receive letters and legal documents the same day we receive them.

The Atlanta, Georgia probate lawyers at The Adams Law Offices will ensure that you are not disadvantaged by being out-of-state. Our Georgia probate law firm clientele are located in over thirty-five US states. We also represent clients in numerous foreign countries that consist of military, contractors stationed and/or working out of the US, and citizens of foreign countries. If you are located out-of-state but have a pending matter in Georgia probate proceeding for which you require legal representation, we can assist you.

Thus, the saying: You stay at Home; We Will Take Care of It!

In fact, many of our clients we have never met face to face. Regardless, we will do what it takes to make you at ease with your case and to keep the flow of communication free and clear. The Adams Law Offices utilizes state of the art video conferences, conference calls, scan documents, e-mail, and attorney availability and accessibility at all hours. You will have your primary and secondary attorneys cell phone number and can call, e-mail, or text them anytime. This can be a tremendous help to clients in different time zones. In fact, we presently have clients in time zones with a one (1) to ten (10) hour time difference.

Call us today at our Main (Buckhead) Atlanta Office at (404) 467-8611, or toll free at (877) 412-3267 to talk about your legal issues and goals. You can also provide a short succinct statement of your legal issues and send it through our “Contact Us” form on our website. Our “Contact Us” form is received by at least one Atlanta probate attorney and one experienced paralegal. In fact, don’t be surprised if you get a phone call from your inquiry while your still on our Georgia probate law firm website.

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.

Continue reading "EXECUTORS AND ADMINISTRATORS -- AN ATLANTA, GEORGIA ESTATE LAWYER CAN HELP YOU KEEP THE PEACE, NEGATE THE APPEARANCE OF IMPROPRIETY, AND PERFORMING YOUR FIDUCIARY DUTIES " »

In my Atlanta and Marietta, Georgia, law firm, I have learned one of the most important abilities a probate lawyer can have, is to be able to keep the peace! In my Atlanta Probate Law Practice, one of the most common questions I am asked is, how to stop heirs and beneficiaries from fighting with 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. 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 conflict arises, litigation, or at least mediation, is not far behind. Probate mediation and litigation can cost precious time, not to mention monetary resources. This type of legal cost can come directly out of the assets of the estate, so with more time spent feuding, less money is available to distribute.

Besides the monetary and time issues, it is important to keep the wishes of the decedent in mind. I believe that most people write wills in part to limit infighting over estate assets. By maintaining a transparent process with the heirs and beneficiaries, conflict can be minimized and the deceased’s wishes can be honored more fully. By retaining the counsel of an experienced Georgia probate lawyer, an executor or administrator can perform the required fiduciary duties and properly keep beneficiaries and heirs informed while meeting all deadlines.

Continue reading "A GEORGIA PROBATE ATTORNEY CAN KEEP PEACE DURING GEORGIA PROBATE PROCEEDINGS" »

North Georgia estate disputes can easily ruin relationships between family members. These types of issues include 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.

Georgia Probate Mediation in the North Georgia/Metro Atlanta area, 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 of a Georgia Estate. 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 North 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 North Georgia 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 Georgia Law Required 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.

Georgia Probate Mediation is one of Our Firm’s specialty practice areas. From our Atlanta-based Main-Office, Our Atlanta Probate Mediation Lawyers handle Georgia Probate Proceedings all over Georgia. Some of the counties and cities include Atlanta, Buckhead, Sandy Springs, Fulton County, Gwinnett County, Duluth, Lawrenceville, Forsyth County, Cumming, Cobb County, Marietta, Acworth, Kennesaw, DeKalb County, North Atlanta, Decatur.

In these counties and cities, and other North Georgia areas, we can assist you with Georgia Probate, Breach of Fiduciary Duty, Breach of Trustee Fiduciary Duties, and other proceedings where the Georgia County Probate Court would likely have jurisdiction.

Continue reading "METRO ATLANTA, GEORGIA ESTATE DISPUTES LIKELY RESOLVED FASTER THROUGH MEDIATION THAN COSTLY LITIGATION" »

As a Marietta, Buckhead, Sandy Springs, and Atlanta Probate Attorney, I have seen the tell tale signs that there are many advantages to establishing a solid Georgia estate plan, yet most people do not have one. Even when a plan does exist with a will, it is possible that the will has not been updated in years. Unfortunately, an out-of-date will can be as costly as not having any will at all, as heirs and beneficiaries will inevitably fight over assets in the estate. As an Atlanta, Georgia Probate Litigation Lawyer, my team and I are experienced in all areas of estate planning and litigation and have helped clients set up effective estate plans that minimize conflict and maximize asset distribution.

Moreover, should you not proceed with properly setting up your estate through a number of different tactics, you could be setting legacy up to being remembered by an embattled North Georgia Will Contest and Protracted Georgia Probate Litigation in North Georgia.

Ultimately, the Court’s goal is to close the estate by distributing the assets. Steps in the probate process include proving the validity of an existing Georgia will, determining if a named executor is fit to administer the estate and appointing a replacement if necessary, appointing an administrator if no will exists, accounting for estate assets, paying debts and taxes, and distribution of any remaining assets per the will or per state law, in the absence of a valid Georgia will.

This probate process is very efficient in Georgia, but some fees and court costs will be required. Legal counsel and other expenses related to the proceedings will be paid for out of estate assets. Additionally, any costs associated with Georgia probate litigation resulting from conflicts between the heirs, beneficiaries, executors or administrators are payable by the estate. Besides the monetary cost of such conflicts, long-term damage to family relationships is common and is best avoided if possible.

Continue reading "FOR GEORGIA PROBATE LAWYERS – BEST PRACTICE MANAGEMENT FOR GEORGIA PROBATE PROCEEDINGS – MINIMIZE CONFLICT AND MAXIMZE ASSET DISTRIBUTION" »

Diligent Probate Lawyers in Atlanta, Georgia, like AThe Adams Law Offices, which consist of former members probate lawyers in Atlanta, Georgia; most notably, The Adams Law Offices, have many clients seek out their counsel on how to receive fair treatment during probate proceedings. As an heir or beneficiary of a Georgia Estate, many primary areas of concern arise concern including mismanagement of the estate and lack of information given to them about the assets of the estate. The executor or administrator handling the Georgia estate may be a family member, a friend of the family, a business associate of the decedent or an impartial third party.

Any perceived wrongdoing may be intentional or innocent. There certainly are individuals who will take advantage of the responsibility of being an executor or administrator for personal gain, but there are also individuals who do not fully understand the nature and extent of the required duties. This lack of understanding can also result in misconduct.

Under any circumstance, heirs and beneficiaries have specific rights that are enforceable under Georgia probate law. An executor or administrator has a fiduciary duty that must be carried out as described by the Georgia Probate Code. If these duties are not completed properly, the executor or administrator can be removed and legal action can be taken against that individual.

Here is a list of the rights of beneficiaries and heirs under Georgia law:

• The right to information about the original assets of the estate and an inventory of these assets

• The right to request an accounting of assets

• The right to review and approve the level of compensation that the executor or administrator will receive for administering the estate

• When not in agreement with the compensation level for the executor or administrator, the right to have the court set the compensation level

• The right to receive estate assets in a timeframe that is reasonable for the complexity of the estate

• When dissatisfied with the executor or administrator for a justifiable reason, the right to have that individual removed and replaced by the court

Continue reading "ADAMS LAW PROBATE LAWYERS IN ATLANTA, GEORGIA, TAKE CARE TO INFORM HEIRS AND/OR BENEFICIARIES OF THEIR RIGHTS UNDER GEORGIA PROBATE LAW" »

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.

Continue reading "FRAUD AND GEORGIA WILL CONTESTS – ATLANTA PROBATE LAWYERS PROTECT BENEFICIARY RIGHTS IN GEORGIA WILL LITIGATION" »

As a Trust Litigation Lawyer in Atlanta, I have witnessed first hand that Georgia trusts can be one of the most incredibly useful investment vehicles for safeguarding assets, and protecting and benefiting trust beneficiaries. These same Georgia trusts, can be one of the most abused legal entities when incompetent or dishonest trustees negligently or intentionally mismanage trusts to the detriment of the trust beneficiaries.

Georgia trusts can be created to provide money, real property, and other assets to family members or other parties after death, or during life. Trusts can be set up in numerous fashions and for many reasons. There are many types of trusts including revocable trusts, irrevocable trusts, marital trusts, and trusts for minor children. These trusts can be used as part of an estate plan to control the distribution of assets or for tax planning purposes. A trust is a valuable part of a Georgia estate plan, but even a well-drafted Georgia Trust with the best provisions, clauses, and intentions, which are clearly and concisely defined and enumerated, can be defeated by disputes between beneficiaries and trustees.

Many of the Georgia Trusts Our Firm handles are as follows:

• Revocable Trusts
• Irrevocable Trusts
• Irrevocable life insurance trusts
• Revocable living trusts
• Long term care insurance
• QTIP and QPRT trusts
• Crummey trusts and other gift transfer options
• Family business partnerships or asset trusts
• Educational or charitable remainder trusts
• Generation skipping trusts
• Grantor retained trusts
• Special needs trusts

In my Atlanta, Georgia Trust Litigation Law firm, I have represented many clients involved in Georgia trust disputes and litigation concerning Georgia fiduciary law lawsuits and legal actions for breach of fiduciary duty. Trustees have a fiduciary responsibility to manage trust assets appropriately and act in the best interests of the beneficiaries. Any inappropriate behavior by the trustee is in conflict with the basic fiduciary duty of that individual. In some cases, fraudulent conveyance and outright self-dealing regarding trust assets is discovered by beneficiaries and will prompt taking action for removal of the trustee. Trustees can be removed as the result of lesser negligence as well, such as in the case of mismanagement of assets, failure to provide an accurate accounting of assets, inadequate income generated by the trust or inadequate tax planning.

Many of the methods and theories we use to control trustees and protect beneficiaries are as follows:

• Demand Inventory and Accounting • Reformation of Trusts • Trust and Will Construction – Interpreting the Trust • Dissolution of the Trust Due to Trust Purpose Being Defeated • Change/Removal of Trustee • Violations of Prudent Investor Rule • Self Dealing by Trustee or Others Under Their Direction • Misappropriation of Trust Funds • Neglect of Trustee Duties/Fiduciary Duties and Responsibilities • Usurping Trust Opportunities for Personal Gain • Abuse of Trust Power • Use of Trust Power for Gain or Upper-Hand in Negotiations and/or Business Affairs • Constructive Trusts to Protect Beneficiaries

If any type of wrongdoing or negligence is suspected on the part of a trustee, it is critical you immediately seek the qualified counsel of an Atlanta, Georgia trust litigation lawyer immediately. An experienced Georgia trust lawyer will ensure that the proper conditions exist for the removal of the trustee. These conditions include breach of duty, failure or refusal to administer the trust adequately or, in the case that all beneficiaries request the removal of the trustee, that the removal supports the purpose of the trust and is in the best interest of all beneficiaries. Our Atlanta Trust Attorneys can also request the court impose a Constructive Trust on trusts assets or the fruits of the trusts assets. Thus, any monies or assets relating back to the misused trust assets are attached to the constructive trust until matters of the misuse and whereabouts of trust assets can be tracked and recouped.

Continue reading "ATLANTA, GEORGIA TRUST LITIGATION ATTORNEYS PROTECT BENEFICIARIES AGAINST INCOMPETENT AND DISHONEST TRUSTEES" »

In my Firm’s Atlanta, Marietta, Buckhead, and Sandy Springs Probate Law Firm, I have found Georgia estate litigation is on the rise. For the most part, the Atlanta, Georgia Probate Litigation lawyers at my Fiduciary Law Firm attribute this to an increase in breach of fiduciary duties among executors, administrators, and powers of attorney. The most common type of disputes we see involves breach of fiduciary duty by the executor or administrator of an estate (also called the personal representative). These personal representatives are assigned the task of managing the distribution of estate assets and are responsible for the fair and honest treatment of beneficiaries and/or heirs during this process. During the course of probate, personal representatives have specific duties under Georgia Fiduciary Law, including the task of handling all estate assets such as real estate, collectibles, cash, bank accounts, retirement accounts, investments, and insurance policies. It is the fiduciaries responsibility of the personal representative to manage this process honestly, efficiently and in the best interests of all beneficiaries and/or heirs.

When a Georgia personal representative is assigned by the decedent in a will, or by the court in the absence of a will, or when the individual named in the will is unable to serve, the expectation is that the personal representative will conduct the required tasks without self-dealing or favoritism towards any party.

Breach of the fiduciary duties required by state law can include the following:

• Theft - directly stealing assets from the estate

• Conversion - indirectly stealing from the estate, for example by liquidating assets for less than their true value and keeping the difference

• Fraud - undermining the will by taking bribes or through dishonesty

• Acting out of Incompetence or Negligence – failure to complete duties correctly and within an acceptable period of time

• Overcharging for Services – charging exorbitant fees for the administration of the estate

• Conflict of Interest - a personal interest in the estate or in the outcome of the probate process

When breach of fiduciary duties and/or responsibilities are suspected, beneficiaries are entitled to swift legal action that will protect their interests. The Atlanta estate litigation lawyers at The Adams Law Offices are versed in all aspects of probate litigation, including the initial phases, which often include mediation. Besides representing heirs and beneficiaries, we are also exceedingly experienced in preparing strategies for wrongfully accused fiduciaries to show that the estate is being managed properly and in a timely fashion under the circumstances, with no occurrences personal benefit or self-dealing.

Continue reading "ATLANTA, GEORGIA PROBATE ATTORNEYS SEE BREACH OF FIDUCIARY DUTY ACCUSATIONS ON THE RISE IN ESTATE ADMINISTRATION PROCEEDINGS" »

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.

Continue reading "ATLANTA, GEORGIA, PROBATE LAWYERS URGE BENEFICIARIES AND HEIRS TO FULLY AND COMPLETELY UNDERSTAND THEIR RIGHTS, IN ANY GEORGIA PROBATE PROCEEDING, BEFORE WAIVING THEM" »

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?" »

The administration of an estate in Georgia probate court can seem straightforward, but as a Georgia Estate Lawyer practicing Georgia probate law, I have met many executors and administrators that found the process to be more complicated than they initially thought. The common realization is that by retaining a lawyer at the outset of the proceedings, many common issues can be avoided and the probate proceedings will move forward more quickly with less cost. In addition, Georgia law closely regulates the fiduciary responsibilities of Georgia executors and administrators and so the consequences of making errors during the process are serious and can result in personal liability for the executor or administrator.

It is very common that most executors and administrators do not have a good understanding of what their fiduciary duties are until after the process starts and issues start to surface. One common issue is family infighting. Even in the most unified families, heirs and beneficiaries will try to steer the process in their favor. And although the executor/administrator may be a highly respected family member, this behavior can result in conflict that will drastically slow down the proceedings, as disputes are resolved. Not having a clear grasp of Georgia probate law, and the required timing of the proceedings, puts the executor/administrator at a disadvantage and hiring a probate attorney can restore the balance.

One fact that many executors and administrators are happy to discover is that the expense of hiring a probate lawyer is payable from the estate’s assets. Even related legal fees incurred before the executor or administrator took control of the assets are reimbursable. Another positive aspect to working with an experienced estate and probate attorney is that the attorney is an unbiased party who will professionally manage the process and handle all parties with fair treatment. Fair treatment is an especially important concept, as many executors and administrators are accused of unethical and self-serving behavior that can result in legal action against them, and ultimately lead to their removal.

Continue reading "RETAINING A GEORGIA PROBATE LAWYER IN THE BEGINNING OF THE ESTATE ADMINISTRATION PROCESS GREATLY BENEFITS EXECUTORS AND ADMINISTRATORS" »

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" »

The Atlanta, Georgia, fiduciary and Estate Litigation lawyers have seen a striking increase in the exploitation of the elderly through powers of attorney. Make no mistake about it; abusing the fiduciary duty imposed under Georgia law for the holder of a power of attorney is tantamount to stealing. It is white-collar crime at its worst. Our Atlanta, Georgia breach of fiduciary duty lawyers have significant experience in rectifying the misuse and abuse of a power of attorney. Our Firm is also aggressive in recovery of the exploited funds.

A Georgia power of attorney gives someone else the legal capability and power to act on behalf of another without their presence. Oftentimes, powers of attorney entail taking over extremely important day-to-day affairs of another and usually involve legally taking over their finances. While powers of attorney can be an effective tool to assist elderly and other persons with diminished capacity and ability, they are easily used to exploit the elderly or other persons with diminished mental or physical capacity. What is more, power of attorney documents are easily obtainable and can be purchased in kits from office and legal supply stores or downloaded online, sometimes free.

In these troubled economic times, family members, friends, and other persons have been using powers of attorney for their own financial gain by taking advantage of the elderly through the use of these documents. If this abuse goes unchecked, the assets, and sources of income of an elderly or incapacitated person can be devastated. In fact, the damage done can be limitless and usually is permanent unless it is possible to recover the assets back from the person who abused the power of attorney.

It is sad, but necessary in this day and time to be very guarded and protective of anyone holding a power of attorney. This is as true for a family member. As the old adage goes: It seems to be the ones you are closest to that hurt you the most. In fact, oftentimes, it is the family member or friend who borrows a little money with the characterless belief they will pay it back.

With the economy worsening, the temptation to acquire and/or abuse a power of attorney is ripe for occurring.

Who should I be on the lookout for?

• Acquaintances

• Family Members (especially ones in financial trouble)

• Scam artists

• Someone who befriends an older person

• Any person who exhibits strange and engaging activity, interest, and behavior toward an elderly or person with diminished capacity or ability

Setting up the power of attorney properly to lessen the chance of abuse.

• Seek advice and retain an attorney to create the power of attorney and explain how they work.

• Limit the powers granted under the power of attorney to those duties necessary for the purpose of the document. A “blanket” power of attorney is dangerous!

• Require the agent to provide a semiannual accounting in the power of attorney, which must be provided to a number or responsible persons who understand accounting and willing to take the time to see that the power of attorney is being used appropriately.

• Require the agent to keep all documentation pursuant to the power of attorney, such as receipts, bank statements, a daily or weekly journal or account ledger, etc.

• Consider a court-appointed conservatorship rather than a power of attorney. The courts require reports to be submitted and these are reviewed by the court staff, are public record, and open for inspection.

• It is best to have one person as agent under a power of attorney as co-powers of attorney only create confusion and result in disagreements.

• Should you be acting under a power of attorney for another, keep detailed, hard copy, and electronic copies of all records. Remember, you have a fiduciary duty as you are acting on behalf of another person. You are required by Georgia law to do what is in the best interest of the other person, which may be contrary to your own best interest and wishes.

Our Atlanta, Georgia estate and probate lawyers advocate that any power of attorney should not be entered into without serious consideration, substantial disclosure, and protections in place.

Continue reading "ATLANTA, GEORGIA, FIDUCIARY LAWYERS SEE POWER OF ATTORNEY EXPLOITATION, MISUSE, AND ABUSE ON THE RISE – THIS IS ESPECIALLY TRUE WITH THE ELDERLY -- THERE IS LEGAL ACTION YOU CAN TAKE!" »

As an Atlanta, Georgia wills, trusts and estate litigation lawyer, I am often asked by potential clients to determine if any undue influence has occurred with respect to a Georgia will, trust, power of attorney; or, other legal document. Our Atlanta, Georgia probate and estate lawyers have pending will contest cases in Atlanta, Georgia (Fulton County) Decatur, Georgia (DeKalb County), Marietta, Georgia (Cobb County), Lawrenceville, Georgia (Gwinnett County) and Macon, Georgia (Bibb County). As such, I have seen a common theme in the Georgia law being used to litigate these cases. While I am of the strong opinion there is typically no one factor which in and of itself can establish undue influence, there are a number of factors, which should absolutely be considered.

In determining and establishing undue influence in a Georgia probate court, or other Georgia state court, many of the relevant factors to consider in determining whether or not undue influence exists include the following:

• The existence of a confidential relationship between the parties;

• The reasonableness or unreasonableness of the testator’s disposition of his estate;

• The testator’s dealings and associations with the beneficiary;

• The testator’s habits, motives, or feelings, and his physical and mental strengths or weaknesses;

• The testator’s family, social, and business relations;

• The manner and conduct of the testator; and

• Any other fact or circumstance that shows the exercise of undue influence on the mind and will of a testator, including evidence as to the bad character of the person(s) exerting the influence.

Under Georgia Law, a transaction is recognized to be the result of undue influence when the parties are in a confidential relationship with each other and one party has a superior mental capability than the party who is the victim of the undue influence.

There are many circumstances under which the undue influence may occur. Moreover, undue influence can take place in a variety of manners, modes of operation, and under many circumstances. Likewise, the parties who are exerting the undue influence can come from many surprising and unusual relationships or associations with the decedent.

As an Atlanta, Georgia wills, trusts and estate litigation attorney, I feel the variables should be evaluated collectively to determine the existence of undue influence. An experienced Georgia estate and probate litigation lawyer who is knowledgeable at assessing all the factors of a potential case should evaluate these variables.

The following are some examples of persons who may be the particularly susceptible to undue influence:

• Persons who are elderly, not competent, naive, gullible or easy to fool

• Persons who have family which live far away

• Persons taking any mind or behavior altering prescription medications, using alcohol or over the counter drugs

• Persons using illegal drugs

• Persons in criminal trouble, with economic or social problems

• Persons who are going through or have gone through major lifestyle changes such as moving, divorce, becoming disabled, etc.

• Persons who have friends or persons who tend to take advantage of their favorable monetary situation

• Persons who are not good with handling their economic affairs or otherwise not good with money

• Persons who are too trusting and not protective of themselves

It is important to understand, there is no standard list of the type of persons susceptible to undue influence. Likewise, there is no standard or norm for persons who engage in exerting undue influence. What is important is that if you suspect undue influence is occurring, is likely to occur, or you believe it has occurred in the disposition of a decedent’s estate or before the decedent’s death, then you should immediately contact an experienced Atlanta, Georgia, wills, trusts, and estate lawyer.

As a beneficiary or heir of an estate, you have options and legal rights under Georgia state law to have a will or other document declared null and void and set aside, recover assets and/or monies, damages, and possibly attorney’s fees. The Adams Law Offices represents heirs, and beneficiaries, in all Georgia wills, trusts, probate and estate disputes and litigation. We provide experienced legal representation through exceptional Atlanta Probate Attorneys. Our Firm has many decades of combined experience through its experienced Atlanta Probate attorneys and staff. We can assist you whether you are an heir or beneficiary. We also represent executors, administrators, and personal representatives in wills, trusts, and estate litigation matters.

Continue reading "ATLANTA, GEORGIA, WILLS, TRUSTS, AND ESTATE LITIGATION LAWYER: UNDUE INFLUENCE AND THE WILL CONTEST – BEST TO FIND OUT BEFORE IT IS TOO LATE " »

Our Atlanta, Georgia, probate, estate, and fiduciary litigation law Firm has experienced a remarkable increase in the number of Georgia breach of fiduciary duty lawsuits we have litigated (or are presently litigating) over the past several years. Likewise, our wills, trusts, and estate attorneys have also seen a significant increase in the number of Georgia will contest lawsuits we have litigated (or are presently litigating).

Perhaps the increase in Georgia breach of fiduciary duty and will contest lawsuits, is in part, attributable to the economic downturn wherein many are watching their wallets and bank accounts, as well as the wallets and bank accounts of others (especially the elderly, incompetent, and incapacitated). I hope that there is an increased awareness into the widespread elder abuse, which is occurring throughout the state of Georgia. Inherently, this elder abuse involves deception and misrepresentation for financial gain. What is more, and I think a definite reason for the increase in cases involving litigation surrounding exploitation of the elderly, is some legal guidance from the Supreme Court of Georgia in a noted case, Bailey v. Edmundson, 280 Ga. 528, 630 S.E.2d 396 (2006). This case is important for a number of reasons which range from what factors make your case a practicable one, to who are the persons we need to keep a watchful eye on or are likely to take advantage of others for financial gain.

In several of my Atlanta, Georgia, probate and estate litigation cases, I use the Georgia Supreme Courts’ findings in Bailey v. Edmundson as my guidelines in assessing the legal implications of matters pertaining to any case involving undue influence as well as lack of capacity, misuse and abuse of power of attorney, and other such cases. Further, it should be noted that undue influence, lack of capacity, and other such factors are usually present together in the facts of any given case. As such, facts found in an undue influence case are likely to be found in a case involving lack of capacity (For Example: Lack of capacity is a condition, which oftentimes allows the undue influence to occur).

In Bailey v. Edmundson, the Georgia Supreme Court considered the following factors as relevant factors in determining undue influence:

Some of the relevant factors to consider in determining whether undue influence exists include:

• Was there a confidential relationship between the parties?

• Was the testator’s disposition of assets reasonable?

• What were the testator’s dealings and associations with the beneficiaries?

• What were the testator’s habits, motives, or feelings?

• What were the testator’s physical and mental strengths and weaknesses?

• What were the testator’s social relations?

• What were the testator’s business relations?

• Where there any other facts, circumstances, or conditions that establish unwarranted implementation of improper influence on the mind of the testator?

• Did any of the above factors result in the testator taking action to be the victim of the undue influence?

• What was the moral fiber of the people exercising the influence? What is bad? If so, how and why?

A transaction is presumed to be the result of undue influence when the parties are in a confidential relationship with each other and one party has a much greater mental ability than the other does, who may be aged or ill, and the one having the greater mental ability reaps the benefits of the transaction.

Case Study: In the case of Bailey v. Edmundson, 280 Ga. 528, 630 S.E.2d 396 (2006).
Mr. Bailey executed a will in October of 2003 naming his daughter as the personal representative of his will and the primary beneficiary. Approximately six months later, Mr. Bailey hired caregivers he met at church. Within a short period thereafter, Mr. Bailey executed a new will making specific bequests to these caregivers.

The Supreme Court found that there was ample evidence of undue influence for the reason that the caregivers did the following:

• The caregivers established a relationship with Mr. Bailey, which was confidential in nature;

• The caregivers were not related to him by blood or marriage; and,

• The caregivers took an active part in the creation of Mr. Bailey’s new will.

WHAT TO LOOK FOR AND WHO TO WATCH:

• Caregivers, caretakers, therapists, and handymen

• Religious persons such as pastors, preachers or those who convey that a testator’s place in heaven depends on the disposition of his monetary assets to a religious denomination or organization

• Distant relatives who were never close to the decedent who suddenly become interested in the decedent’s affairs

• Long lost “friends” who suddenly or suspiciously come into the testator’s life

• Persons who have quasi-intimate dealings with the decedent such as a former employee or employer, cosmetologist, banker, hairdresser, chauffer, body guard, fitness, rehabilitation or other such instructors or service providers

• The retaining of a new attorney or changing of attorneys (especially one picked or used by the person exerting undue influence)

• Any other persons or parties who are new to the testator’s life or that are acting in a different or unusual fashion

As a family member, or caring individual of a loved one, you have the ability under Georgia state law, and through other legal avenues, to seek legal assistance for anyone you feel could be, or has been, a victim of elder abuse. Our Firm encourages you to fight financial predators or other persons who seek illegal or unjust financial gain by exerting unwarranted influence or taking advantage of another’s weaknesses. The Adams Law Offices represents individuals and families seeking to bring to justice anyone who engages in unwarranted activity to the detriment of the lawful beneficiaries or heirs. Our Firm diligently and aggressively represents clients in probate and estate disputes and litigation involving wills, powers of attorney, or other legal documents.

Continue reading "ATLANTA, GEORGIA, ELDER LAW, PROBATE, AND ESTATE LITIGATION LAWYERS -- BEST PRACTICE GUIDANCE TO PROTECT THOSE WHO CANNOT PROTECT THEMSELVES -- BAILEY V. EDMUNDSON CASE STUDY" »

As an experienced Atlanta Probate Lawyer, I have repeatedly seen first-hand the frustration a beneficiary or heir can experience if the executor or administrator of a Georgia Probate Estate refuses or is unwilling to provide the beneficiaries or heirs with answers concerning the status of the estate. I also understand the difficulties a non-responsive, uncaring, or vindictive executor or administrator can cause by imposing their “perceived” powers upon the beneficiaries or heirs of an estate. Fortunately, for the beneficiary or heir subject this unjust behavior, these executors or administrators must carry out their fiduciary duties imposed pursuant to TITLE 53 of the Official Code of Georgia Annotated entitled “WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES”.

Moreover, the Georgia executor or estate administrator has to move the Georgia estate administration process along expeditiously and in the best interests of all persons who are interested in the estate and with due regard for their respective rights. This implies a “reasonable” amount of time in which matters are to move forward.

Nevertheless, regardless of the high standards and accountability to which a fiduciary is held, if you do not seek legal counsel to address these matters and compel answers, the Georgia Probate Courts will not likely hold accountable these Georgia Estate Fiduciaries. As a beneficiary or heir, it is up to you to seek relief by asserting your entitlement to answers and compelling answers due under Georgia Probate law and using the powers of the Georgia Probate Courts to obtain answers. The fact remains, even if you have signed documents giving the executor or administrator broad powers and waivers under Letters Testamentary or Letters of Administration issued by the Georgia Probate Court, you can still request and receive answers from the executor or administrator of the estate. However, matters have become much more complex and it is wise to seek the counsel of an experienced Atlanta Probate Lawyer or Atlanta Estate Litigation Law Firm.

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