Articles Posted in PROBATE & ESTATE ADMINISTRATION

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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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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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As a probate attorney in Atlanta, Georgia (and the surrounding Buckhead, Sandy Springs, Marietta, North Georgia, and Metro Atlanta Areas), who specializes in Atlanta, Georgia, Probate Litigation, my clients frequently ask how they can avoid the Georgia probate process altogether. There are several reasons to want to sidestep probate, including speed of distribution of the assets to beneficiaries and the cost of the process, in both time and money. Privacy may be an issue as well. Probate proceedings are a matter of public record, so non-probate asset classification provides the estate and beneficiaries with anonymity. Only non-probate assets that contractually name a beneficiary can escape probate, but with a little planning many assets can be classified in this way. Common examples of non-probate assets are as follows:

Common examples of non-probate assets are tax-deferred retirement accounts, like 401(k) and IRA accounts, and proceeds from life insurance policies. Bank accounts can also be classified as non-probate assets when set up as Payment on Death Bank Accounts. The same can be done by setting up bonds, Stock and brokerage accounts as Transfer on Death Securities. Under either of these methods, the beneficiaries have no interest or access to the assets while the owner is alive and ownership of the assets is only transferred to the beneficiaries upon death. To protect real estate holdings or financial accounts, they can be set up with Joint Tenancy with Right of Survivorship. This structure is common between married couples and automatically transfers the assets to the survivor when one of the owners dies.

Living trusts are another effective way to circumvent the probate process. A Georgia revocable living trust allows property to transfer directly to the beneficiaries named in the trust. Once this type of trust is set up, title to the assets passes to the trustee who has the job of managing the trust during the life of the grantor. In Georgia, the grantor can also be named as the trustee. As trustee, the grantor has free access to the assets while alive and may sell, trade, buy, liquidate or donate the assets. A common misconception is that once assets are transferred into a trust, they are protected against all claims from creditors. Yet, because the assets are under the total control of the grantor, the trust does not stop creditors from pursuing the assets. Nevertheless, it is more difficult for assets to be taken from a trust, as creditors in Georgia must file a petition in court to do so. Another advantage of Georgia revocable living trusts is that the grantor can change the terms of the trust or reclaim title to the property at any time. Upon the death of the grantor, a successor trustee distributes the property directly to the beneficiaries after death of the grantor.
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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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As an Atlanta, Georgia Guardianship and Conservaorship Lawyer, I want to emphasize the importance of evaluating a Georgia Probate Courts’ Guardianship and Conservatorship Requirements in determining if a proposed Georgia Guardian and/or Conservator is a suitable to act in the Best Interests of a proposed ward.

Under Georgia Law, to serve as a Georgia Probate Court Appointed Guardian and/or Conservator of a Proposed Ward, such person must have the following qualifications:

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

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

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

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

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

Upon the filing of the Petition, the GA Probate Court will decide whether it finds grounds to accept or deny the Petition. If the Petition is denied, the GA Probate court will dismiss the Petition. If the Petition is accepted, the Georgia Probate Court will instruct the proposed ward be served by the GA County Sheriff’s Department with a copy of the Petition, a Notice to Proposed Ward of Proceedings to Appoint a Guardian and/or Conservator, a copy of a Notice of Attorney or Guardian ad Litem that has been appointed to represent the proposed ward. Additionally, if no evaluation has been done, the GA Probate Court will order and evaluation wherein a date, time, and place for the proposed ward to meet, and be examined, by court appointed physician or psychologist licensed to practice in Georgia or a licensed clinical social worker. Following the evaluation, a written report will be filed with the court and an Order and Notice of Hearing will be issued. At the hearing, the Probate Court Judge or an Administrative Judge appointed by the GA Probate Court will conduct a formal and confidential hearing and listen to all interested parties and make a determination whether the proposed ward lacks sufficient capacity to make or communicate significant responsible decisions concerning his/her health or safety and/or financial matters.

If the proposed ward is declared “incompetent,” some or all of his or her rights are taken away from him or her and a Guardian and/or Conservator is appointed. A guardian is usually a family member; however, there are professional guardians who perform the duties of a Guardian for several different wards and usually charge an annual fee for their services. The court will issue Letters of Guardianship to the guardian, which serves as his or her court appointed authority to make decisions on the ward’s behalf. The guardian is answerable to the court and must file an initial plan profiling his or her plan for the ward’s care and each year on the anniversary of the issuance of the guardians Letters of Guardianship, he or she must file an annual plan with the GA Probate court.

Any person who is thinking about becoming a Guardian and/or Conservator should engage the services of an experienced Georgia Guardianship and Conservatorship lawyer to guide them through the complicated process of establishing a Guardianship and/or Conservatorship in GA and comply with the preparation of the annual reports due to the GA County Probate Court regarding the well-being of the ward. In addition, any person who has issue with, or who wishes to contest the Petition of a Guardian and/or Conservator for a proposed ward should contact an experienced GA probate attorney. This is also true for the proposed ward as it is can be the case that the proposed ward does not feel they need to have their rights taken away from them and wish to contest these matters themselves. Moreover, it is oftentimes the case that persons will establish a Guardianship and/or Conservatorship over a proposed ward to gain access to the proposed ward’s assets. Moreover, it is often the case that the Guardian and/or Conservator does not have the best interest of the proposed ward in mind and such Petition should be contested.
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Atlanta Attorneys know there are many tools that can be used to facilitate the transfer of assets in an estate plan. Holding property jointly (in two or more names) is one method that has advantages and disadvantages. Joint ownership of real estate, bank accounts, and other property is common because assets owned jointly with rights of survivorship do not become assets of the decedent’s estate. These assets do not pass through probate to be distributed but are transferred by operation of Georgia law and automatically pass outside of the decedent’s estate to the surviving owner(s). When joint owners are spouses, this set up can be ideal. Because there is no delay in the transfer of property under joint ownership, the surviving owner can immediately take control of the property. This is especially useful if access to the property is urgent, time-sensitive, or when financial issues need to be resolved immediately upon the death of the decedent joint owner.

Joint ownership does have its downsides and should be carefully considered before being implemented in any inter vivos circumstances or estate plan. For instance, one scenario where it can be unwise to set up property ownership jointly is when a parent and child are named as joint owners. Problems can arise if the parent has other children who are not included in the joint ownership of the property or the child involved in the joint ownership is financially unstable. With multiple siblings, even if the Georgia will specifies that the joint property should be divided evenly between all of the children, the joint ownership property is not part of the estate. Thus, the surviving owner is not obligated to split the property and distribute it per the Georgia will. This is because the joint property transfers to the surviving owner(s) by operation of law. Thus, the property never becomes part of the estate and therefore is not subject to the laws of intestacy or distribution per the terms of the Georgia will. Also, if the joint owner is a child with financial issues, the parent can lose the property if the child’s creditors endeavor to collect outstanding debts. The child’s joint ownership interest can also be threatened if the parent has financial issues, which cause the parent to declare bankruptcy. This can oftentimes be the case if the parent has significant medical expenses or other expenses associated with growing older and not having earned income.

A Georgia Estate Planning attorney can provide other alternatives to placing property in joint ownership. One good alternative is to draft an effective estate plan that specifies how the property will be divided under a number of possible scenarios. Without a crystal ball we cannot foresee which scenarios are most likely, but they can include illness, remarriage of a spouse, bankruptcy, etc. With such variability, it is prudent to draft a detailed estate plan that can factor in multiple circumstances. Such an estate plan is especially effective for larger estates or in situations where a dispute between heirs and/or beneficiaries may be inevitable. Estate planning under such scenarios often involves the use of revocable and irrevocable trusts and annual gifting. Implementing these types of estate planning vehicles can be complicated and it is necessary to have an experienced estate planning attorney assist you.
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Atlanta Lawyers, Social Workers, Adult Protective Servicesand other persons and/or entities that focus on protecting (or preying upon) the older and aging population of the United States, know it is a common for most families to have an elderly parent who is independent enough to live alone, but who is unable to manage household expenses. In the interest of helping the senior maintain independence for as long as possible, a son or daughter’s name is frequently added to the senior’s bank account to facilitate payment of the expenses. In addition to paying any bills from the account, the joint account holder will be able to keep an eye on the outflow of monies and perhaps oversee any transactions that the senior does make. How the account is set up when the additional person is added, though, can have an impact on the outcome of any Georgia probate proceedings upon the death of the parent.

When creating a joint bank account, inserting the word “or” between the names of both account holders is a simple way to allow for either party to process transactions independently. While this facilitates the payment of expenses as described in the previous example, if one account holder dies, it also allows for all funds in the account to pass to the surviving account holder. When the second person is a spouse or the only surviving relative, this may not pose a problem. But when there are other heirs, a dispute may take place if the heirs feel that they are entitled to a portion of the funds. The question of who receives the funds will be addressed during probate proceedings, as the true intent of the deceased is investigated. Most commonly, the proof of how the money will be divided up is found in the will. But with no will, or if the will does not clearly state how the funds are to be allocated, the court will needs to determine if the second account holder was added only for the sake of convenience or if it was the true intention of the deceased to gift the funds to the second account holder.

When the word “and” is used between two names on a joint bank account, no transactions on the account can be processed without the other party’s signature. This is common in Georgia business partnerships where the inflow and outflow of funds needs to be closely monitored. Under this scenario, in the event that one account holder dies, half of the funds will pass on to the estate of the deceased and half of the funds will pass to the surviving account holder. This set up is not common in family dealings and does not usually cause a dispute during Georgia probate proceedings.

The types of joint account disputes involving family members can be avoided by asking an experienced and qualified Georgia probate attorney to set up a will that clearly defines your 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.
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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. The Libby Law Firm represents beneficiaries and heirs in all stages of probate proceedings to get answers from unfair, dishonest, and deceitful executors and administrators. The Libby Law Firm welcomes the opportunity to assist you in filing a petition for inventory and accounting and acquiring the answers you deserve.
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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 Libby Law Firm, 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 Libby Law Firm, 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 Libby Law Firm can help you determine which course of legal action is right for you.
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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, The Libby Law Firm, 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, 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.

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