November 20, 2012

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

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


GROUNDS FOR CONTESTING A WILL IN GEORGIA:


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


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


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


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


TORTIOUS INTERFERENCE WITH INHERITANCE

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

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

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

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October 19, 2012

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

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

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

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

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August 27, 2012

PROBATE LAWYERS AND ESTATE PLANNING ATTORNEYS MUST BE EQUALLY DILIGENT IN PREVENTION UNDUE INFLUENCE

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

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August 27, 2012

GEORGIA PROBATE HAS A LANGUAGE ALL ITS OWN

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.

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August 3, 2012

FIND A PROBATE LAWYER IN ATLANTA, GEORGIA WHO CAN UNCOVER ADMINISTRATOR AND EXECUTOR SELF-DEALING BY DEMANDING A “PETITION FOR INVENTORY AND ACCOUNTING” - GEORGIA ESTATE BENEFICIARY AND HEIRS CAN PROMPTLY DEMAND ANSWERS

I have experienced first-hand the wide range of time frames and seemingly, intolerable leeway a Georgia executor or administrator has to carry out the fiduciary duties imposed pursuant to TITLE 53 of the Official Code of Georgia Annotated entitled “WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES”. Under this Title 53, the Georgia Probate Court likely will allow the any GA executor or administrator varying degrees of time in which to undertake the Georgia estate administration process in any decedent’s estate. Any acting executor or administrator who is qualified and in charge of an estate in Georgia Probate court has approximately six (6) months to create an inventory of all of the estate's assets, liabilities, debts and other relevant estate matters, and issue and provide any beneficiary or heir of the Georgia estate an inventory and accounting. Moreover, this seemingly lenient rule of Georgia Probate Law is oftentimes waived by an unknowing estate beneficiary or heir if they “sign off”, or “consent” to giving the estate executor or administrator this leeway.

The unknowing beneficiary or heir oftentimes signs documents as requested by the Georgia executor or administrator, or their GA Probate Lawyer, without knowing or asking what these documents mean. It is essential for any beneficiary or heir to understand the impact signing any “release” will have on them in knowing and understanding the estate's assets, liabilities, debts and other relevant estate matters such as the status of the estate proceedings or their inheritance. As a rule of Georgia Probate Law, you should be very cautious about any documents you sign. This is especially true if it is requested you sign anything having to do with an estate under which you are a beneficiary or heir, where you are requested to sign in front of a witness or witnesses or in the presence of a Georgia Notary Public. Under Georgia Probate law, you are deemed to have read, understood and presumably had the right to consult with a Georgia Probate Attorney or Atlanta, Georgia Probate law firm concerning the meaning and impact of these documents. In my Probate Law practice, I often see beneficiaries and heirs unknowingly waive important rights to their detriment. Moreover, many times it becomes a “he says she says” argument as to whether the beneficiary or heir knew or understood the dire impact of the documents she or he signed or if any explanation was given at all.

If you are a beneficiary or heir under a Georgia Probate Court estate, you should consult an experienced Atlanta Probate Law Firm before signing anything. As an experienced Georgia probate lawyer, I can not tell you how many time clients come into our Buckhead, Atlanta, Georgia Probate Law Firm after it is to late and the client-beneficiary or client-heir has given up many important rights they would have been entitled to had they not signed important empowering estate documents to their detriment.

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July 27, 2012

ESTATE LAWYER'S TOOL TO STOP FINANCIAL ABUSE AND THEFT FROM THE ELDERLY AND/OR INCAPACITATED – SEEK HELP IN “GREENWAY v. HAMILTON ET AL.; CASE NO. S06A0050. JUNE 26, 2006”

While we focus on Obama Care, health care reform, and whether social security will stay properly funded to keep up with payouts to the ever-increasing elderly retirees, it seems the financial abuse of the elderly and incapacitated has reached new highs. Most Atlanta, Georgia estate lawyers agree that in “looting the estate situations”, Adult Protective Services is not a preliminary answer, but can be of great service in many instances once the financial abuse is uncovered. The answer to this problem is action by you, the family and friends of the financially abused elderly and/or incapacitated persons.

Atlanta, Georgia probate lawyers should not only represent clients in Georgia probate cases after a loved one passes, but should be ready to intervene and stop the financial abuse of loved and/or incapacitated persons before they pass if they are the subject of looting, theft, elder financial abuse, etc. I have termed it “looting of the estate” is some instances even though the elderly person has not passed, and an estate has not yet been created. I believe that Greenway v. Hamilton is one remedy, but I think what is better is to catch the thieves during the life of the elderly and/or incapacitated and hopefully before too much money/assets have been stolen. These thieves are abundant and as easily found as your closest family member.

Atlanta, Georgia probate lawyers oftentimes practice Georgia probate law, but also work in estate administration, estate litigation, Georgia guardianship and conservatorship proceedings, and misuse/abuse of powers of attorney and just plain conversion of assets taken from the elderly and/or incapacitated. It seems lately I have noticed a disturbing trend and I want to be outspoken about it so that you, the reader and be on the lookout for financial elder abuse. It takes many forms, and usually is carried out by someone who is close to the loved one. I hope that more attorneys will look to GREENWAY v. HAMILTON. GREENWAY v. HAMILTON et al. No. S06A0050. JUNE 26, 2006, to bring many of these “thieves” to justice. I also help it will raise awareness of what may be happening will our loved ones try to enjoy their last years. Frankly, what I see happening more and more often is quite disturbing. That being theft from the elderly using powers of attorney, looting, conversion, undue influence for gain, and more.

This is in every way shape and for, FINANCIAL ELDER ABUSE and must be stopped! Here are some of the forms this looting of elderly assets takes place:
• Using a power of attorney to control assets of an elderly and/or incapacitated person, but use their monies for other purposes than the health, care, welfare, and well-being of the elderly and/or incapacitated person.

• Using monies of an elderly and/or incapacitated person for their own purposes and not for the caretaking of the elderly and/or incapacitated person. Oftentimes, the elderly and/or incapacitated person can do little to stop these thieves or do not understand the scam that is being perpetrated on them. Many factors contribute to this. Mostly is the lack of capacity elderly or incapacitated person suffer from prevents them from understanding what is happening.

Looting a loved one’s estate is a serious legal matter and one that should not be taken lightly. While using your influence to affect the estate and the will are one thing, deliberately forging documents or ignoring a will and testament’s wishes is another. While both are against the law, looting the estate is significantly more heinous and carries federal penalties, as well as, civil penalties.

When a person is ill or too incapacitated to care for him or herself, they depend upon the kindness and care of others to help them in their final years. Unfortunately, many people prey on these individuals and take advantage of them during this time. When a person deliberately ignores his loved one’s wishes as laid out in their last will and testament and disposes of the money and estate for their own personal gain, then they may be guilty of looting the estate.

If you are the heir to an estate, it is important to pay attention to the things that are going on throughout your loved one’s life. Make sure you regularly visit and remind your loved one to show you all documents BEFORE he or she signs them. If there is a will and testament already in place, make sure your loved one knows not to make any changes before consulting with you and your family. In addition to talking to your loved one, you should also talk to family members and other heirs to ensure that everyone involved agrees about your loved one’s care and treatment.
If you or someone in your family believes that your loved one may be the victim of estate looting or undue influence, it is important to contact an Atlanta probate and estate dispute attorney immediately. Your Atlanta, Georgia estate attorney can help you ensure that your loved one’s estate is protected from all types of fraud, looting, and greed.

CONTACT US IMMEDIATELY UPON FINDING THEFT OF WOULD BE ESTATE ASSETS FROM THE ELDERLY AND/OR INCAPACITATED - Adams Libby, LLC ATLANTA PROBATE ATTORNEYS, GEORGIA ELDER ABUSE LAWYER, ATLANTA, GEORGIA ESTATE AND GUARDIANSHIP LAWYERS - MAIN OFFICE IN ATLANTA, GEORGIA-BUCKHEAD NUMBER: (404) 467-8611 OR TOLL FREE: 1-877-412-3267. You may also choose to use our "CONFIDENTIAL CONTACT US FORM"

If you feel you or your loved one is the victim of “looting of the estate”, immediately contact the Atlanta, Georgia estate lawyers at Adams Libby, LLC. Our experienced Atlanta estate lawyers can stop the looting of the estate. Our Atlanta, Georgia estate attorneys have a number of methods. Most notably is bringing the looting or stealing of what will be estate assets to the attention of those carrying out this egregious act. This is conversion and is stealing, theft by taking, and/or conversion anyway you portray it.

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July 23, 2012

DURING GEORGIA PROBATE PROCEEDINGS, PROMPT REMOVAL OF UNFIT ESTATE EXECUTORS AND ADMINISTRATORS PREVENTS FRAUD AND SAVES ON LEGAL FEES

Atlanta Lawyersrecommend that clients have a lawyer prepare their will, powers of attorney, and other estate planning documents. The existence of a will makes the distribution of estate assets run more smoothly during probate proceedings and can significantly reduce disputes between heirs and beneficiaries. When a will is written, an executor can be named who will administer the estate. In some cases, when no executor is named in the will, or if there is no will, the court will assign an administrator. In all of these scenarios, disputes can arise surrounding the choice of the executor or administrator.

Disputes over executors and administrators
, which cause unneeded stress during probate proceedings, occur because the role of estate executors and administrators is so important. This is a fiduciary role in which the person administering the estate has very specific legal and financial responsibilities. Because of the serious nature of these responsibilities, there are times when the person chosen is regarded by the heirs and beneficiaries as being an inappropriate choice. Executors, as well as court assigned administrators, have to operate in a levelheaded, responsible manner during the process and they need to be able to understand the mechanisms of Georgia probate law. Besides possessing a calm disposition and having knowledge of the proceedings, they also need to be trustworthy and honest and have the best interests of all parties at heart. Without these traits, a poorly chosen executor or administrator can cause havoc in the proceedings. Fortunately, Georgia law does provide heirs and beneficiaries with a mechanism to remove executors and administrators.

Georgia probate law allows for a formal objection to be filed that removes the person picked to administer the estate. When the heirs or beneficiaries recognize that the person assigned to administer the estate is unfit, it is always preferable to remove them immediately when probate proceedings are initiated. By acting promptly, before any breach of the fiduciary duties can occur, costs associated with fraudulent actions and any ensuing legal fees can be avoided. Of course there are cases in which the person chosen initially appears to be adequate for the responsibilities, but later acts inappropriately, is dishonest or irresponsible. In those instances, it is possible to sue for breach of fiduciary duties, including, but not limited to, the removal and replacement of the administrator or executor. This can be done once a breach of duties occurs, or if a breach has not yet occurred, once there is evidence that the person intends to violate their fiduciary duties.

In any probate proceedings it is important to secure the counsel of a qualified and experienced Atlanta, Georgia probate attorney. Individuals acting without proper legal counsel can unknowingly file false or groundless petitions, such as petitions to remove a person assigned to administer an estate. These frivolous petitions carry specific penalties under Georgia probate law. For that reason, it is especially wise to always seek legal counsel to avoid these types of issues, as well as to ensure the most successfully outcome of the probate process.

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July 23, 2012

ATLANTA LAWYERS PREPARE STRATEGIES TO DEFEND AGAINST WILL CONTESTS – WE OCCUPY BOTH SIDES OF COURTROOM AND USE THIS EXPERIENCE FOR YOUR BENEFIT

The Atlanta lawyers at Adams Libby, LLC 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. Adams Libby, LLC 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 Adams Libby, LLC 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.

July 19, 2012

HOW TO FILE A PETITION FOR INVENTORY AND ACCOUNTING IF YOU ARE CONCERNED ABOUT WASTING OF ESTATE ASSETS: GEORGIA PROBATE LAW OVERRIDES WAIVER TO PRODUCE INVENTORY AND ACCOUNTING TO HEIRS OR BENEFICIARIES

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, 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.

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July 17, 2012

ATLANTA ATTORNEY KEEPS THE GEORGIA COUNTY ESTATE EXECUTOR OR ADMINISTRATOR "IN CHECK" DURING GEORGIA ESTATE ADMINISTATION

As an Atlanta Lawyer that practices Atlanta (Fulton County) Probate Litigation, I see many clients who need guidance in the complicated area of probate proceedings. Because the death of a family member is such an emotional and difficult time for all involved, it is important to have legal safeguards in place that not only protect heirs and beneficiaries during this delicate period, but that also protect executors and administrators. When a will exists and an executor has been named in the will, it is not uncommon for conflicts to develop between the executor and the heirs and beneficiaries. When there is no will, it is also possible for conflicts to emerge between the administrator and the heirs. Both parties, those administering the estate and those inheriting the estate, can have valid legal concerns.

Even when the estate is being administered in a responsible manner, because emotions run high in these situations, heirs and beneficiaries can begin to imagine that the executor or administrator is taking advantage of the situation. And executors and administrators can feel that, despite their hard work administering the estate, they are wrongly accused of inappropriate behavior. The good news is that by inserting some legal checks and balances into the process, these situations can be avoided or, if they do occur, resolved. One example of a useful legal instrument that helps diffuse these conflicts is the petition for inventory and accounting. Even though the executor or administrator appears to have absolute power to manage the estate, that person is in fact bound by a fiduciary duty. As such, the person administering the estate is required to handle all related duties in the best interest of all parties. When the duties carried out fall under suspicion, heirs and beneficiaries can make a legally binding request for an inventory and accounting of all estate assets. It is important to note that in Georgia sometimes heirs and beneficiaries waive their right to petition for inventory and accounting, but when a conflict arises they can legally renounce the waiver and the petition can move forward.

In some cases, conflicts surface when executors and administrators 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. But there are instances that can cause undue skepticism and one of these is when estate assets fall into categories that are difficult to identify. One type of asset that can prove very difficult to discern is intellectual property, such as artistic works, inventions or patents. For this reason it is important to retain the service of an experienced and qualified probate lawyer who can assist in identifying all tangible and non-traditional assets and protect the interests of all parties involved. Whichever side you find yourself on in probate proceedings, as an executor or administrator or as an heir or beneficiary, you need to be aware of the legal options, rights and duties that apply to you and seek the support of legal counsel.

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July 15, 2012

UNDUE INFLUENCE CASE AND WILL CONTESTS IN ATLANTA, GEORGIA, INCREASE SEEN

As an Atlanta Lawyers; Especially Atlanta Will Challenge Lawyers, I have seen the number of cases on the rise. As an Atlanta, Georgia Probate Litigation lawyer, I have represented many clients in different types of will contests. Especially common are the cases that involve undue influence in the writing of wills. When undue influence is found to have played a role in the writing of the will, then the court can determine that the will is null and void.

Undue influence occurs when an act takes place that overcomes the victim’s free will. Undue influence is most likely when there is a confidential relationship between those involved and when one of the parties is of greater mental capacity. The confidential nature of the relationship and ability of one party to exert influence over the other party due to a superior intellect are the key factors that allow the manipulation to go unnoticed.

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. Evidence of mental or physical coercion is required. Because direct evidence is difficult to collect (since the victim is deceased), the courts will rely on circumstantial evidence for proof. The court will try to determine if:

1) the decedent was easily influenced, due to age, health or general mental state
2) the person suspected of undue influence had an opportunity to coerce or manipulate the victim
3) the person suspected of undue influence had the motive or disposition to influence the victim
4) the person suspected of undue influence was actively involved in creating the will
5) the will appears to have been influenced

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July 14, 2012

THE BEST ATLANTA PROBATE LITIGATION ATTORNEYS -- HOW TO FIND THEM

The Atlanta, Georgia Attorneys at my firm are receiving more and more calls from persons interested in finding out whether they need a Georgia probate attorney to represent them in a Georgia probate ‘inheritance’ or ‘estate’ administration proceeding, dispute or litigation. Our Firm also receives an equal number of calls from executors or administrators of Georgia estates seeking experienced local Atlanta, Georgia, probate litigation lawyers to guide them through the trials and tribulations of being the executor or administrator of a Georgia estate. As an experienced Georgia probate lawyer, I have found that chances are if you think you need a Georgia probate lawyer, you almost certainly do.

The Atlanta probate litigation lawyers at our Firm meet weekly to discuss the status of the cases our Firm is handling, discuss strategies which are best for our clients, and to bounce ideas and other ways to further our clients’ best interests, we have also begun discussing and sharing ideas and methods in order to be the best Georgia probate lawyers for our clients. This process involves analyzing not only what our Firm’s Georgia probate dispute attorneys are doing in their cases, but also how opposing counsel are challenging and standing up for their clients against us. Since we found some common similarities between effective probate litigation attorneys, we decided to share them with you in your search for a qualified probate attorney.

Our analysis is as follows:

• Find Georgia probate attorneys who can handle the stress of a Georgia probate case. A strong lawyer can help you through this emotional struggle and take much of the stress off you. If you are seeking out Georgia probate litigation lawyers in order to find one to represent you, it is likely because a relative or someone close to you has died, you stand something to gain something from the person who has died (this person known under Georgia law as the "decedent"), or a combination of both of these factors. Usually these factors range from monetary or other gain to peace of mind that the loved one’s death is handled properly and peacefully. As such, this likely is a difficult process for you and emotionally draining. More often than not, there is relentless intra-family fighting and disharmony. Again, look for a lawyer can help you through this emotional struggle and take much of the stress off you.

Find Georgia probate lawyers who are accessible to you, care about you and your case, and who you feel will your case for you by achieving your goals.

• Find Georgia probate attorneys who willingly give you their contact information, such as cell number, and other information. While you likely will not call this lawyer on his cell too often, this is a good indicator of how much dedication the lawyer has and how much he cares about providing exceptional service to you. Nevertheless, you know he or she will be available if you are in a bind.

• Find Georgia probate lawyers who can handle both transactional probate matters and probate litigation matters. Remember, a Georgia probate litigation case still has the transactional and administrative aspects to it. Moreover, these aspects are likely to be more convoluted and complicated. Thus, you need a probate lawyer that can handle any matters that come his or her way, whether they are transactional or litigation based. In addition, a lawyer who knows both transactional probate matters as well as probate litigation matters almost assuredly will have the upper hand over opposing counsel.

• Find the Georgia probate lawyers who regularly handle probate, trusts and estate cases, but also know about other areas of the law, such as real estate, business and taxation. Georgia probate estate matters likely consist of most of the decedent holdings and they likely will involve a host of legal areas. In contrast, some of the decedent’s holdings may pass “outside” of the decedent’s estate and the extra knowledge that your Atlanta, Georgia probate lawyers may have, will serve you well.

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July 13, 2012

MISCONDUCT AND REMOVAL OF GEORGIA EXECUTORS AND ADMINISTRATORS IN GEORGIA PROBATE COURT

As a Georgia probate litigation attorney practicing in the Atlanta area, I am frequently asked to represent beneficiaries and heirs in disputes against executors and administrators who have breached, or threaten to breach, their fiduciary duties. Georgia probate law provides that if misconduct or other violation(s) by a Georgia executor of administrator occur, the Georgia probate court may cause the executor or administrator to appear before the Probate court and show cause why such executor or administrator should not be removed from their fiduciary position.

A cause of action arises out of a breach of a fiduciary duty or a mere threat to commit a breach of fiduciary duty. If a breach or the threat of a breach occurs, the interested party shall have a cause of action for the following:

• To recover of damages;

• To compel the performance of the executor’s or administrator’s duties;

• To enjoin the act of a breach of fiduciary duty;

• To compel redress, by payment of money or otherwise;

• To appoint another executor or administrator;

• To remove the executor or administrator;

• To reduce or disallow compensation to the executor or administrator;

• To seek any other remedies provided by statute, common law or otherwise;

Most of these Georgia probate court actions fall within the exclusive jurisdiction of the county probate court. In Georgia, executors and administrators are bound by a fiduciary duty and hold a position of trust and power for the benefit of all persons who have an interest in the Georgia estate. Moreover, a co-executor or co-administrator may be subject to joint and several liability. In short, one executor or administrator may be liable for the acts of the other such executor or administrator if such executor or administrator knew or should have known of the certain wrongdoing and failed to take reasonable action to prevent or remedy this wrongdoing.

In my Atlanta, Georgia, probate and estate litigation law firm, it is more common than one might assume to see otherwise upstanding citizens turn into thieves, crooks, and scoundrels when put into a position of trust and power, such as that of an executor or administrator. This is especially true when the executor or administrator oversees considerable assets and believes they can engage in self-dealing, theft and even fraud.

Adams Libby, LLC helps Georgia heirs and beneficiaries as well as other interested parties successfully navigate the “ins and outs” of Georgia estate administration proceedings. Our Firm would welcome the opportunity to guide and protect you throughout this stressful and confusing process. Please contact us at (404) 467-8611 or 1-877-412-3267 to see how we can assist you. Please also feel free to send us a confidential e-mail Web Site contact us form. Adams Libby, LLC is conveniently located in the Buckhead section of Atlanta, Georgia near the intersection of Piedmont and Roswell Roads.

Adams Libby, LLC helps clients in Georgia probate matters throughout the Metro Atlanta, Georgia area including the following cities, communities, and counties: Atlanta, Alpharetta, Fairburn, Roswell, Sandy Springs, Buckhead, Decatur, Lithonia, Druid Hills, Dunwoody, Tucker, Marietta, Smyrna, Vinings, Duluth, Acworth, Fayetteville, Marietta, Lawrenceville, Norcross, Morrow, Riverdale, Canton, Milton, John's Creek and other cities throughout North Georgia. DeKalb County, Fulton County, Cobb County, Gwinnett County, Fayette County, Clayton County and Cherokee County

July 13, 2012

ATLANTA LAWYER REALIZES "ESTATE ADMINISTRATION" IS THE INHERIT FIGHTING BETWEEN EXECUTORS, ADMINISTRATORS, HEIRS AND BENEFICIARIES

As an Atlanta Georgia Lawyer practicing in the Atlanta area, I find I am frequently asked by my clients, who are executors and administrators, about the best way to handle and manage the heirs and beneficiaries of the Georgia probate estate. These questions often involve legal and moral matters concerning executor and administrator fiduciary duties, responsibilities and the rights various parties to a Georgia estate administration proceeding.

The fact is most Georgia probate and estate administration questions consistently arise from fighting between the executors, administrators, heirs and beneficiaries. This fighting is more the standard rather than the exception and commonplace in many estate administration proceedings. Moreover, if you are executor or administrator of an Georgia probate estate proceeding, you should seriously consider retaining an experienced Georgia probate attorney to guide you in carrying out your fiduciary duties and protect you from aggressive and vindictive heirs and beneficiaries who may be out to cause you trouble.

Additionally, in my Atlanta, Georgia, probate law firm, I receive an equal if not greater number of questions from my clients who are heirs and beneficiaries of a Georgia estate administration proceeding. The most common questions they ask concern the actions of the executor and administrator and center on what these fiduciaries can and cannot do, what constitutes a breach of their fiduciary duty, and what legal actions can and should be taken. What is more, heirs and beneficiaries who ask these difficult questions and seek to understand estate administration proceedings should be commended. All too often, the Georgia executor and administrator will abuse their position of power and use it for their own gain and self-dealing or that of preferred family members, friends or co-conspirators. Other common questions concern timing of estate matters and events as well as the rights of estate creditors and debtors as well as a host of other parties.

Having practiced as a Georgia fiduciary attorney for a considerable length of time, I am quite sure that nothing makes people act more unreasonable or irrational than the combination of the acquisition of monies and other assets, in combination with the death of a family member. The single most common question without doubt is whether the executor or administrator is acting in accordance with Georgia fiduciary law.

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July 11, 2012

GEORGIA HEIRS AND BENEFICIARIES CAN GET ANSWERS DESPITE WHAT YOU MAY BE TOLD BY THE GEORGIA ESTATE EXECUTOR OR ADMINISTRATOR

As a Georgia probate attorney who practices in the metro Atlanta area, I have found my probate law firm practice has recently changed its focus. In large part, this is due to the need for answers and accountability on the part of executors and administrators.

I am finding more and more heirs and beneficiaries calling into my office with the same complaint against the executor or administrator of the Georgia estate. These concerns center around the executor or administrator refusing to provide the beneficiary or heirs of the estate with an accounting and an inventory of the Georgia estate assets. The common runaround the executor or administrator usually gives the beneficiary or heir is they have no duty to provide such information. However, Georgia beneficiaries and heirs should know they can make a legally binding request in writing to the executor and administrator of the estate for an inventory and accounting of estate assets. Oftentimes beneficiaries or heirs have waived this right, but they can renounce this waiver in writing and move forward with a petition for inventory and accounting. O.C.G.A. § 53-7-32 (2008) provides as follows:

§ 53-7-32. (Revised Probate Code of 1998) Waiver of right to receive; relieving personal representative of duty to make

(a) Any beneficiary of a testate estate or heir of an intestate estate may waive individually the right to receive the inventory from the personal representative. Such waiver shall be made in a signed writing that is delivered to the personal representative and may be revoked in writing by the beneficiary or heir at any time.

If you are worried about the monetary, fiscal, or fiduciary mismanagement of a Georgia estate to which you are a beneficiary or heir, you have options and rights under Georgia probate law. Adams Libby, LLC represents beneficiaries and heirs in all stages of probate proceedings to get answers from unfair, dishonest, and deceitful executors and administrators. Adams Libby, LLC welcomes the opportunity to assist you in filing a petition for inventory and accounting and acquiring the answers you deserve.

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April 10, 2012

ATLANTA, GEORGIA PROBATE, WILLS, TRUST & ESTATE ATTORNEY GIVES ADVICE ON HOW TO FIND THE RIGHT GEORGIA PROBATE LAWYER

I am an Atlanta, Georgia probate attorney who practices Georgia probate law in the metro Atlanta and North Georgia area. I also own a well-known and successful Atlanta, Georgia probate law firm, which was founded in 1999, and has become a well-known full service Georgia probate, wills, trusts, and estates law firm.

My name is Duncan H. Adams. My Firm, Adams Libby, LLC, has been immeasurably successful and grown immensely. Thus, I speak from experience when I write from you today to give you some tips on finding a Georgia probate lawyer who fits your needs and is right for you. On another note, if you would like to call me to get some more personal advice, you can reach me at our Main Office by calling (404) 467-8611, toll free at 1-877-412-3267, or sending us a confidential web inquiry through our “Contact Us” forms, which are found on the firm websites, blogs, and throughout the internet. I begin by offering you the following:

If someone close to you has passed away, you may find yourself wondering if you need a probate lawyer. During this stressful and highly emotional time, it may be difficult to spend time choosing the right attorney for your case, but the extra time and effort you put into find the right lawyer can make all the difference when settling matters of probate.

Moreover, It is my general thought that unless you have significant legal training in the area of Georgia wills, trusts, and estates, you should start from day one with a a Georgia probate lawyer on retainer.

In general, there are two types of Georgia probate lawyers:

Georgia Transactional/Administration Lawyers—attorneys who mainly handle the administrative side of probate matters

Georgia Probate litigators—attorneys who represent clients who are involved in probate or estate disputes

One of the first steps towards choosing the right Atlanta probate lawyer is to decide which type of Atlanta, Georgia probate attorney best suits your needs. Are you involved in a Georgia probate dispute or trust litigation matter? Alternatively, do you simply need an attorney to help you and your family with the distribution and administration of the estate?

When choosing the right Atlanta probate attorney, here are a few questions you should ask:

• Does the Atlanta probate attorney specialize in your type of probate situation?

• Are there good reviews supporting the Georgia probate law firm or Georgia probate lawyer you choose? Did your attorney come recommended by anyone you know?

• Did you contact the Georgia State Bar Association to determine if the lawyer is in good standing?

• Is the Atlanta probate lawyer specialized in Georgia probate law?

• How much experience does this lawyer have in litigation or probate administration?

• What are their fees and how are fees determined?

• Is this Atlanta probate lawyer easy to talk with and does he or she discuss all of your options with you?

• Did your Atlanta probate lawyer provide you with a copy of the retainer agreement?

The Atlanta, Georgia probate attorneys at Adams Libby, LLC are experienced in all facets of Georgia probate administration, mediation, disputes, and litigation. If you feel that you are being denied your rights as a beneficiary or heir, need assistance carrying out your fiduciary duties as executor or administrator, being suspected undeservedly of undue influence in a Georgia will contest, or are experiencing a number of other difficulties that arise in Georgia probate proceedings, contact us to discuss a strategy that protects your interests. Our Atlanta probate lawyers understand that by its very nature, this is a difficult and stressful time on all parties having an interest in the probate proceedings.

We can be reached at (404) 467-8611 or 1-877-412-3267. You may also send 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 near the intersection of Peachtree and Piedmont Roads. Our Main Office is on the street level with free covered parking and security on site.

March 6, 2012

THE GEORGIA PROBATE PROCESS ALLOWS THE EXECUTOR (PERSONAL REPRESENTATIVE) TO RECEIVE STATUTORY FEES

Personal representatives of Georgia estates perform a complicated task that carries a serious fiduciary responsibility and is closely monitored by the probate court system. Personal representatives, also known as executors and administrators, are either named in a will or appointed by the probate court to administer the assets in a decedent’s estate. Georgia probate law allows for personal representatives to hire legal counsel related to the Georgia probate process and also permits a fee to be paid for the work on the estate. The fee is a percentage based on the value of assets identified by the personal representative as estate property, the income generated by the assets in the estate during the probate administration process and the value of assets that are distributed by the estate at the end of the Georgia probate administration proceedings.

Georgia Code - Wills, Trusts & Estates - Title 53, Section 53-6-60
(b) If the personal representative´s compensation is not specified in the will or any separate written agreement, the personal representative for services rendered shall be entitled to compensation equal to:

(1) Two and one-half percent commission on all sums of money received by the personal representative on account of the estate, except on money loaned by and repaid to the personal representative, and 2 1/2 percent commission on all sums paid out by the personal representative, either for debts, legacies, or distributive shares;

(2) Ten percent commission on the amount of interest made if, during the course of administration, the personal representative shall receive interest on money loaned by the personal representative in that capacity and shall include the same on the return to the probate court so as to become chargeable therewith as a part of the corpus of the estate;

To properly understand the exact value of the assets and what percentage of these items is allowed as a statutory fee, it is important to consult with an experienced Atlanta, Georgia probate attorney. A probate attorney can also help the personal representative fulfill the fiduciary responsibility that is inherent in the task of administering an estate. The personal representative is required by law to fairly perform the duties and failure to do so can result in a lawsuit against the executor or administrator. Even if the failure to perform the duties properly is due to an innocent lack of understanding by the personal representative, he can be held legally responsible. Hiring a Georgia estate lawyer will not only limit the personal liability of the representative, but will also help preserve estate assets and keep the beneficiaries and heirs satisfied so that the estate can be administered as efficiently and quickly as possible.

Unfortunately, in my Atlanta, Georgia Probate Law firm many personal representatives only come to me for help once problems have surfaced during the probate process. In most of these cases, by the time I get involved a lot of damage has already been done that results in a loss of estate assets and a break down in the relationship between the personal representative and the Georgia beneficiaries and heirs. Most times these individuals are family members and, during the stress of the Georgia probate process, the conflict caused by innocent misunderstandings can permanently damage these precious relationships.

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December 20, 2011

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

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.

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August 3, 2011

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

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.

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October 1, 2010

AN ATL PROBATE LAWYERS CAN HELP YOU DISARM A SELF-DEALING OR DISHONEST EXECUTOR OR ADMINISTRATOR

Lawyers in my Atlanta, Georgia Estate Litigation law firm see cases of dishonest executors and administrators all too often. We have put these dishonest executors into two categories:

1). The Genuinely Accidental Act. If an executor or administrator wants to deceive beneficiaries and heirs, it is relatively easy for these individuals to take advantage of their role. For example, during difficult and emotional times after a loved one’s death, it is possible for administrators and executors to convince the other parties involved that they should sign away certain rights. Even though done unintentionally nor in planning to breach their fiduciary duties, executors and administrators can give the appearance of dishonesty through their lack of knowledge of their duties and responsibilities.

Still, as executors and administrators these individuals owe a fiduciary responsibility to beneficiaries, heirs and other interested parties. Unfortunately, most executors or administrators do not completely understand what their responsibilities are and how much control they have over the probate process. Oftentimes, an administrator or executor is a family member and may have reasons, either financial or emotional, for not being completely thorough during probate proceedings. This creates a situation where it is easy for the administrator or executor to appear as if any wrongful acts were intentional. After all, one duty of an executor or administrator is to know their duties.

2). The Purposeful Wrongful Act. If an executor or administrator wants to deceive heirs, beneficiaries, and interested third parties, it can be relatively easy. When no one is checking executors or administrators actions, these personal representatives can get away with quite of bit of malfeasance. These executors and administrators set out of a course of deception and pilfering from the estate. Moreover, these individual executors and administrator seem to insist they are correct, yet are unwilling to give any information, accounting, or inventory relating to the estate or their fiduciary roles. There are occasions where would be honest executors and administrators turn to the dark side becoming dishonest upon finding out how easy they it may be. Whether this occurs is usually determined by whether these executors or administrators have this deceptive and greedy soul and poor character existing in them. The Atlanta, Georgia estate attorneys at my Firm fear these are the most dangerous executors or administrators. This is because these are the persons or entities who usually get appointed by decedents because they are thought to be honest.

Under Georgia fiduciary law, you do have legal recourse to handle a dishonest executor or administrator who is stealing from, misrepresenting or otherwise defrauding an estate. While it is preferable to take preventative steps to block an unfit individual from being named as executor or administrator, more often it is only after probate is initiated and the executor or administrator begins to handle the estate that a problem is detected. In those cases, you can sue for breach of fiduciary duty. In fact you can sue if the executor or administrator merely threatens breach of fiduciary duty. If you are able to prove your case, the court may impose one or a combination of the following actions:

• Removal of the executor or administrator
• Replacement of the executor or administrator
• Require that the executor or administrator perform the assigned duties
• Require that the executor or administrator pay back stolen money or assets lost due to the breach
• Have the executor or administrator compensate the petitioner for losses
• Placement of wrongfully distributed estate assets into trust until it is decided who should receive the property
• Non-payment or reduced payment of statutory fees to the executor or administrator by the estate

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August 11, 2010

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

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

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

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

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

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

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February 7, 2010

AS A BENEFICIARY OR HEIR OF A GEORGIA PROBATE ESTATE, YOU ARE ENTITLED TO AN INVENTORY AND ACCOUNTING IN GEORGIA PROBATE COURT

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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December 26, 2008

GEORGIA ADMINISTRATORS AND EXECUTORS – YOU AND YOUR GEORGIA PROBATE ATTORNEY SHOULD SAFEGUARD AGAINST ESTATE ASSET MISMANAGEMENT AND BREACH OF FIDUCIARY DUTY

As an Atlanta probate attorney, I often see Georgia probate estate administrators and executors turn into dishonest persons once they become administrator or executor of the probate estate. Upon qualification by the Georgia Probate Court, any administrator or executor is put into a position of power and trust over heirs, beneficiaries and others involved in the Georgia estate administration process and the assets of the Georgia probate estate. It is normal, but not wise, for heirs and beneficiaries to be trusting of the Georgia estate administrator or executor. This is especially true given the tough times are going through in this economic era and that it is wholly true that everyone could use an extra few dollars. Oftentimes, matters are made worse because many Georgia estate administrators or executors are family members, friends of family members or long trusted family friends.

In my practice as a Georgia Probate litigation and dispute lawyer, I see good people turn bad when they gain control of estate assets and have easy access to money that is not theirs. I have found this to be especially true when these estate assets include easily maneuverable items such as liquid cash, stocks, bonds, cars, jewelry, real estate and other items of great monetary value. This is especially true because these estate assets seem to be just arm lengths away from a “dip into the pot” without anyone noticing or any harm done at all. This is a common misperception of the untrustworthy administrator or executor and nothing could be further from the truth. As an Atlanta estate litigation attorney, I see and know all too well the tricks and deceptive actions of these dishonest and conniving persons. Fortunately, under Georgia probate law, these administrators and executors must adhere to and act within the scope of their fiduciary duty. Such administrators and executors are bound by the this duty almost regardless of what rights you may have been told you have signed away to them.

An administrator or executor (known as a fiduciary) has the following legal duties and obligations:

§ 53-7-1. General powers and duties of personal representative; additional powers
A personal representative is a fiduciary who, in addition to the specific duties imposed by law, is under a general duty to settle the estate as expeditiously and with as little sacrifice of value as is reasonable under all of the circumstances. The personal representative shall use the authority and powers conferred by law, by the terms of any will under which the personal representative is acting, by any order of court in proceedings to which the personal representative is a party, and by the rules generally applicable to fiduciaries to act in the best interests of all persons who are interested in the estate and with due regard for their respective rights.

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December 23, 2008

GEORGIA EXECUTORS AND ADMINISTRATORS HAVE A FIDUCIARY DUTY TO UPHOLD TO THE HEIRS AND BENEFICIARIES OF THE GEORGIA ESTATE

As a Georgia probate litigation lawyer who has represented clients in countless court and legal proceedings concerning Georgia estate disputes in probate court, I am seeing more and more breaches by executors, administrators, and agents for powers of attorney, of their fiduciary duties.

"Fiduciary Duty" Defined: A fiduciary duty is a legal relationship of confidence or trust between two or more parties. In a fiduciary relationship, confidence and trust is put into another, whose good faith, advice and protection are sought after and required by law.
The term fiduciary frequently is becomes issues in the management of Georgia probate estates by untrustworthy or self-dealing executors or administrators. In fact, it is more and more often, I am coming across breach of fiduciary duty cases and they have become quite common issues concerning executors and administrators in Georgia probate estate administration. My thoughts are that since we have fallen on tough times with respect to our economy, these Georgia executors and administrators are taking liberties with their fiduciary duties imposed by Georgia probate law.

If you feel parties will act in a manner inconsistent with fairness or engaging in self-dealing, please know Adams Libby, LLC represents administrators, executors, heirs, beneficiaries, estates, and personal representatives in all stages of Georgia estate administration and Georgia probate matters. Our Firm has extensive experience in Georgia probate guidance; Georgia probate disputes; Georgia probate litigation matters; and, estate mediation. Please feel free to contact us (404) 467-8611 or 1-877-412-3267 to see how we can assist you. Please also feel free to send us a confidential e-mail Web Site contact us form. Adams Libby, LLC is conveniently located in the Buckhead section of Atlanta, GA near the intersection of Piedmont and Roswell Roads.

September 10, 2008

GEORGIA PROBATE COURT: EXECUTOR AND ADMINISTRATOR FEES, SAVING THE ESTATE MONEY AND KEEPING THE PEACE AMONGST THE BENEFICIARIES AND HEIRS

As executor or administrator of a GA estate, you are entitled to the statutory fees for Georgia executors and administrators. These statutory fees are based on a percentage of assets taken into the estate, a percentage of income on estate assets during the administration of the estate and a percentage of assets distributed from the estate upon finalization and discharge of your fiduciary duty under the Official Code of Georgia Annotated and payable to an executor or administrator. Please note that these statutory fees as used in the Official Code of Georgia Annotated use the term; “personal representative” to refer to both an executor and administrator you should consult an experienced Georgia Probate attorney to understand these amounts.

IT IS VERY PROMISING IF NOT PROBABLE, THAT HIRING A GEORGIA ESTATE PLANNING AND PROBATE ATTORNEY AND LAW FIRM, WILL ACTUALLY SAVE THE ESTATE MONEY AND PRESERVE AND EFFECTUATE HARMONY AMONG THE BENEFICIARIES AND HEIRS OF THE ESTATE. THIS IS ESPECIALLY TRUE WHEN YOU RETAIN GA PROBATE ATTORNEY AND LAW FIRM WITH SIGNIFICANT PROBATE AND ESTATE DISPUTE LITIGATION EXPERIENCE. THE LAWYERS AND LEGAL TEAMS OF THESE FIRMS KNOW HOW TO RECOGNIZE POTENTIAL PROBLEMS THAT COULD ARISE AND PREVENT THEM FROM COMING TO FRUITION. BY THE SAME TOKEN, THE SAME GA PROBATE AND ESTATE ADMINISTRATION LAW FIRM CAN ADDRESS, REACT AND RESOLVE ANY PROBLEMATIC SITUATIONS BEFORE THEY BECOME MATERIAL ISSUES IN THE “EXPEDITIOUS” ADMINISTRATION OF THE ESTATE.

I believe almost everyone acting as a personal representative is better off with the help of an experienced Georgia probate lawyer. Despite this reality, many people named as personal representatives start out thinking they can handle the job without help. As time goes on and the duties and tasks required of them become more complicated, many realize they need the help of a professional Atlanta wills, trusts and estate lawyer.

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July 31, 0012

HOW DO YOU HANDLE A DISHONEST EXECUTOR, ADMINISTRATOR IN GEORGIA PROBATE COURT?

As an Atlanta, Georgia probate dispute lawyer, I know a personal representative who “steals” or “defrauds” an estate, or otherwise behaves dishonestly, is a nightmare for a grieving family, the beneficiaries, and heirs. Unfortunately, I have seen in my Atlanta probate law firm practice, this occurs more than you might think. Inexperience with the legal and financial duties of a personal representative can lead to mistakes that have very bad results for the estate and its heirs or beneficiaries. In other cases, because executors and administrators are frequently family members or close friends of the person who died (decedent), they may have emotional or financial reasons for not being completely genuine. Or, they may have fallen on tough times and just think nobody is watching and no real harm will be done by “stealing” a “little bit” here and there.

Fortunately, Georgia fiduciary law allows you several ways to deal with a personal representative who is not meeting his or her duties, being dishonest or otherwise engaging in self-dealing. If you know ahead of time that the personal representative is not trustworthy, you may file a caveat -- a probate law term for a formal objection -- to that person's role as personal representative. As a Georgia probate litigation lawyer engaged in will contests and probate disputes, I vastly prefer to take steps long before this stage, to minimize the costs to my client from both fraud and legal fees. Nevertheless, it is often not until the probate process is underway that heirs and beneficiaries realize that there are problems.

For that reason, the law also allows them to formally sue a dishonest personal representative for breach of fiduciary duty -- that is, breach of the duty to act wisely and legally with another person's money. In fact, you can file this type of claim when the personal representative has merely threatened to breach that duty, as well as when you have positive evidence that he or she has breached it. If you can prove your claim, you can ask a court to order one or more of the following remedies:

• Stop a threatened breach of fiduciary duty
• Remove the personal representative
• Replace the personal representative
• Compel the personal representative to do his or her duties
• Reduce or deny payment to the personal representative
• Have the personal representative pay back money stolen or lost because of a breach of fiduciary duty
• Compel damage payments (compensation for the petitioner's losses) from the executor or administrator (personal representative)
• Money or property given to the wrong beneficiary may also be placed in trust by the court while it works out the proper ownership.

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