Articles Posted in BREACH OF FIDUCIARY DUTY

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

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

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

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