Articles Posted in PROBATE & ESTATE ADMINISTRATION

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As an Atlanta, Georgia Estate Attorney, I am always interested in helping my clients develop an optimal estate plan that will effectively manage their assets. Many of my clients come to my office already convinced that they need a Georgia living trust versus a will. People perceive the Georgia probate process to be lengthy and costly process, in both time and money. This perception is oftentimes based on the probate process in general. It is true that many states have a probate process that is exceedingly expensive and complicated ( Florida would be one state I would put in this category). However, the probate process in the State of Georgia would not fall into the category of expensive and complicated when you are being represented by an experienced Atlanta, Georgia probate lawyer.

The attraction of a Georgia living trust is that the assets named in the trust are not considered part of the decedent’s estate and therefore do not go through probate. To the contrary, assets that are subject to a testamentary devise, bequeath, or bequest under the decedent’s will, would be part of the decedent’s estate and would go through probate. But as I advise my clients, probate can be an efficient and useful process. Wills should be structured properly with the aim of mitigating conflict between the parties involved. Conflict and the resulting mediation or litigation is what inevitably causes the Georgia probate process to potentially become expense and time consuming. Nevertheless, oftentimes a form of dispute resolution or estate litigation in probate court is necessary. Sometimes a will is the right option when a living trust is too expensive for the benefit it provides or if conflict is inevitable between heirs. What is more, one of the greatest benefits of the probate process, is the Georgia probate court’s supervision over all parties involved in the decedent’s estate administration. In fact, the estate lawyers in our Atlanta, Georgia probate Law Firm, which specialize in Georgia estate administration and litigation, have found probate court oversight extremely beneficial when there are contentious heirs and/or aggressive creditors.

Different from a written document like a will, a living trust is a legal framework into which assets are transferred. Assets in a living trust can include cash, bank accounts, investment accounts, stock, land, homes, vehicles, collectibles and any other personal property. The terms of the living trust spell out to whom the assets will be distributed upon death and because the assets are no longer in your name, but in the name of the trust, they will not have to go through probate to be distributed. Besides posthumous probate avoidance, another important advantage of a living trust comes into play if the individual becomes unable to manage independently due to sickness or disability. In this case, a previously named successor trustee can take over and handle certain matters pertaining to the living trust.

The naming of trustees is obviously critical when setting up a living trust. Many people name themselves as the sole trustee and also name a series of successor trustees (in case one or more named trustees are not able to serve when needed). Either a person or an institution can be named as successor trustee. Spouses setting up a living trust frequently name themselves as co-trustees, although any two adults can be co-trustees. One of the benefits of naming co-trustees is that upon the death, resignation, or incapacity of one of the co-trustees, the surviving co-trustee can continue to administer the trust. Ultimately, the law gives trustees the right to complete control over assets in a living trust. For this reason it is critical that only the most trustworthy people are named as trustees. It is important to remember, all Georgia trustees must adhere to rigorous fiduciary duties imposed under Georgia law, whether they are an individual or entity. This is the same Georgia fiduciary duty imposed upon executors, administrators, and personal representatives.
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In my Atlanta, Georgia Probate Law Firm, I have represented clients in many Georgia estate disputes that were the result of poor management of estate assets during the probate proceeding. Probate can be a complex process and Georgia law provides guidelines for probate proceedings and outlines specific duties for the personal representatives (also referred to as executors and administrators) that are appointed to manage the estate during probate. These tasks must be carried out according to Georgia’s law on fiduciary duty which is imposed and closely regulated by Georgia state law. Typical fiduciary duties of Georgia executors and administrators include, but are not limited to, identifying, locating and collecting estate assets, making outstanding payments on behalf of the estate and distributing assets to beneficiaries. Failure to carry out such fiduciary duties is referred to as a breach of fiduciary duty. There are a number of remedies which the court can impose for a breach of fiduciary duty.

One of the requirements of Georgia probate law is that the fiduciary duties carried out by administrators and executors are completed with the best interests of the heirs and beneficiaries at heart. In fact, the word fiduciary is defined as “involving trust” and it is this trust that is often the missing ingredient in the probate process. As a highly experienced team of Atlanta, Georgia Probate Litigation attorneys, we have often witnessed the emotional and financial carnage created by self-dealing and untrustworthy executors and administrators. Unfortunately, in today’s economic climate we are seeing the abuse and breach of Georgia fiduciary duties occur more frequently.

Yet not all Georgia estate disputes are the result of intentional acts of deception or wrongdoing. Due to the complexity of Georgia probate law, many competent and well-meaning executors and administrators get lost in the process, missing filing dates and misunderstanding requirements. For this reason it is wise to retain the services of a qualified Georgia probate attorney. A Georgia probate attorney will help executors and administrators fulfill their duties fairly and completely, as well as assist heirs and beneficiaries who want to ensure that their interests are represented.
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The administration of an estate in Georgia probate court can seem straightforward, but as a Georgia Estate Lawyer practicing Georgia probate law, I have met many executors and administrators that found the process to be more complicated than they initially thought. The common realization is that by retaining a lawyer at the outset of the proceedings, many common issues can be avoided and the probate proceedings will move forward more quickly with less cost. In addition, Georgia law closely regulates the fiduciary responsibilities of Georgia executors and administrators and so the consequences of making errors during the process are serious and can result in personal liability for the executor or administrator.

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

One fact that many executors and administrators are happy to discover is that the expense of hiring a probate lawyer is payable from the estate’s assets. Even related legal fees incurred before the executor or administrator took control of the assets are reimbursable. Another positive aspect to working with an experienced estate and probate attorney is that the attorney is an unbiased party who will professionally manage the process and handle all parties with fair treatment. Fair treatment is an especially important concept, as many executors and administrators are accused of unethical and self-serving behavior that can result in legal action against them, and ultimately lead to their removal.
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As Atlanta, Georgia, business attorneys who also practice complex trust and estate planning and will, trust and estate litigation, we recognize there are numerous lawyers and companies who want to help you plan and protect your estate assets. These same lawyers and companies also want to help you set up your business succession planning and assist you with your estate planning. However, as business assets become increasingly intangible and more difficult to define, the estates of persons owning and having an interest in these businesses become more complex, difficult to plan, probate and administer. If these estates are not planned properly, it is quite possible these estates could end up in litigation.

As businesses, assets, and information have become increasingly digital, intangible, and available solely on-line, it is important to choose Atlanta business lawyers who understand your “intangible” business assets, how to protect them, and how to formulate effective trust and estate planning for these assets. Moreover, you not only need trust and estate attorneys, you need these same attorneys to be Georgia business attorneys well-versed in complex business matters as they relate to intellectual and technological property, copyright and trademark issues, and other potentially intangible property.

For example, any number of lawyers might be able to draft a basic will, and this may be fine for someone with fairly limited and straightforward “traditional” assets. If everyone knows you have accounts at a local bank and brokerage house and you keep your account documents on file and in physical form, it may be easy to ascertain what is in your estate.

On the other hand, consider the following:

• What if you have accounts at one of the “on-line only” banks?

• What if all your account statements are e-delivered?

• What if you have a second business selling goods on e-bay, or if you have a business or assets in a “virtual world,” such as Second Life?

• Who has your login information and passwords to these accounts?

• How will anyone determine what assets you have, or where? How will these assets be valued and by whom?

• Even if you do not have these things now, can you guarantee that you will not have them before your beneficiaries or heirs need to administer your estate?

Thus, it is increasingly important to consider not just your tangible assets, but also your digital, intellectual, technological, and other such assets, when planning your estate. This is why you must choose attorneys who understand the complexity of these assets and can advise you on how to protect yourself and your business as well as your beneficiaries and heirs.

The Libby Law Firm has been at the forefront of the union of technology as it relates to trusts, estates, business planning, and representation of individuals and businesses with non-traditional assets. Our Atlanta Attorneys also specialize in business, trust, and estate litigation as it relates to “intangible” and “non-traditional” assets.
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If you are, or may be, an executor or administrator of an estate in GA probate court I believe you should consider that you are in charge of managing the bulk of the administrative responsibilities related to the administration of the estate in Georgia and have a strict fiduciary duties to carry out.

As a potential or acting executor or administrator of an estate in GA probate court, you must understand that you are legally accountable for the expeditious management of nearly all administrative responsibilities related to the administration of the Georgia estate considering the circumstances. These legal obligations are referred to and set forth in Title 53 of the Official Code of Georgia Annotated (O.C.G.A.) which governs “Wills, Trusts, and Administration of Estates.” These legal obligations are a lofty standard and referred to as your fiduciary duties under Georgia probate law. These “fiduciary duties” impose on all executors and administrators exceptionally demanding legal responsibilities to the estate beneficiaries, heirs, Georgia probate court and other “interested parties”.

The Personal Representative (Administrator or Executor) Obligations and Duties Include:

1. Make sure that desired funeral arrangements are made and carried out.
2. Locate the original will and file with the Georgia Probate Court with the correct petition and other legally required documents. This includes the decedent’s death certificate.
3. Petition the GA Probate Court for appointment as Executor or Administrator (both referred to as a “Personal Representative” under GA law) and Petition for Letters Testamentary or Petition for Letters of Administration depending on the whether a Will governs the decedent’s estate and whether there is a Personal Representative available to serve under the Will.
4. For decedent’s estates, publish Notice to Debtors and Creditors of the Estate in the legal newspaper (“Legal Organ”). Publish legal Notice of Hearing in the legal newspaper, or other publication, acceptable to the Court.
5. Obtain death certificate or doctor’s statement for insurance claims (sometimes birth and marriage certificates also are necessary).
6. Notify all heirs, legatees, devisees, and next of kin of their interest in the estate. Search for any heirs if necessary. Petition the Court for Determination of Heirs if necessary.
7. Locate any safe deposit box or location where relevant instructions, documents, assets of the estate may be kept. Arrange for inventory of safe deposit box contents.
8. Obtain any whole and/or life insurance claim forms, fill out, and submit with policy (or policies). Obtain proceeds for beneficiary and Form 712 for estate tax return.
9. File claims for final medical bills with Medicare and other medical insurance carriers.
10. Assemble necessary documents for each parcel of real estate or mineral interest, including deeds, leases, tax receipts, title abstracts, and insurance policies.
11. If necessary, oppose in Court all incorrect or invalid claims against the estate.
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Our Atlanta, Georgia, probate, estate, and fiduciary litigation law Firm has experienced a remarkable increase in the number of Georgia breach of fiduciary duty lawsuits we have litigated (or are presently litigating) over the past several years. Likewise, our wills, trusts, and estate attorneys have also seen a significant increase in the number of Georgia will contest lawsuits we have litigated (or are presently litigating).

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

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


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

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


• Was there a confidential relationship between the parties?

• Was the testator’s disposition of assets reasonable?

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

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

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

• What were the testator’s social relations?

• What were the testator’s business relations?

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

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

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

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

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

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

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

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

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


WHAT TO LOOK FOR AND WHO TO WATCH:

• Caregivers, caretakers, therapists, and handymen

• Religious persons such as pastors, preachers or those who convey that a testator’s place in heaven depends on the disposition of his monetary assets to a religious denomination or organization
• Distant relatives who were never close to the decedent who suddenly become interested in the decedent’s affairs
• Long lost “friends” who suddenly or suspiciously come into the testator’s life
• Persons who have quasi-intimate dealings with the decedent such as a former employee or employer, cosmetologist, banker, hairdresser, chauffer, body guard, fitness, rehabilitation or other such instructors or service providers
• The retaining of a new attorney or changing of attorneys (especially one picked or used by the person exerting undue influence)

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

As a family member, or caring individual of a loved one, you have the ability under Georgia state law, and through other legal avenues, to seek legal assistance for anyone you feel could be, or has been, a victim of elder abuse. Our Firm encourages you to fight financial predators or other persons who seek illegal or unjust financial gain by exerting unwarranted influence or taking advantage of another’s weaknesses. The Libby Law Firm represents individuals and families seeking to bring to justice anyone who engages in unwarranted activity to the detriment of the lawful beneficiaries or heirs. Our Firm diligently and aggressively represents clients in probate and estate disputes and litigation involving wills, powers of attorney, or other legal documents.
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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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As an Atlanta Estate Lawyer and in working for a Georgia Probate Law Firm, my experience has been that there are several rules of thumb to follow when opening and administering a Georgia estate in county probate court:

They are, in simplified form, as follows:

1. No Promises: Do not make any promises to heirs, beneficiaries or otherwise. Give general time frames adding on that old saying “if everything goes smoothly”, etc.

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As an Atlanta, Georgia probate attorney, possibly the most frequent “Georgia probate lawyer question” I receive from the heirs and beneficiaries concerning the administration of a Georgia estate in county probate court is: How long will this take? (Or, should I say: “When will I get my money?”). My response depends heavily on how fast your Georgia probate law firm can get the petition completed for acknowledgment and perfect service on the heirs or beneficiaries, file the petition with the Georgia probate court, and how long you will be waiting on the probate court to rule on the petition.

Oftentimes, when there is no objection to the petition, the Georgia probate court will not require that a hearing be held, and issue an order opening or granting that administration of the estate begin. This, in large part, depends on the Georgia County Probate Court’s satisfaction with the petition for probate, the parties involved, and the detail and care with which the petition is drafted and filed and how this petition meets all the legal requirements set forth under Georgia probate law. This is notwithstanding any caveat/objection to the petition, which can prolong the process tremendously. My experience is that hiring an experienced Georgia probate lawyer can make the Georgia estate administration and Georgia probate process much faster and smoother.

Furthermore, do not let a let geographical distance be to your disadvantage. Our Firm represents numerous clients from other states with matters pending in Georgia probate courts. We are here to assist you from wherever you may be located and have the technical and communicative skills to do so effectively and cost efficiently.

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As a Georgia estate dispute and probate litigation lawyer, I have represented numerous Georgia estates, executors, administrators, heirs, and beneficiaries. In doing so, I have often times guided them to various “free web sites” so that they may see for themselves what is involved in the Georgia probate and estate administration process. There are a number of resources on the internet for use in effective estate administration and otherwise gather information about this complicated process. They are the following: The State of Georgia Probate Website ; The Georgia Courts Website ; The IRS ; and, most importantly the link to the county in which you are offering the will for probate (i.e. The Fulton County Probate Court Website)

The State of Georgia Probate Court Website and The Georgia Courts Website have links, forms and important information on estate administration and the probate process. In addition, theses sites contain a wealth of forms to be used in the State of Georgia (these two sites should be used to download any probate forms). The IRS site is an important sources of tax references, contact numbers, and information and documentation resources.

Unfortunately, these clerks and staff can not give you legal advice and are instructed to not engage in such action. Additionally, these sites are for informational purposes only, and while official, please know that nothing can replace the guidance of an experienced Georgia probate law firm.
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