Articles Posted in WILLS, TRUST & ESTATE LITIGATION

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

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

• The existence of a confidential relationship between the parties;

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

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

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

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

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

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

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

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

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

• Persons who are elderly, not competent, naive, gullible or easy to fool
• Persons who have family which live far away
• Persons taking any mind or behavior altering prescription medications, using alcohol or over the counter drugs

• Persons using illegal drugs
• Persons in criminal trouble, with economic or social problems
• Persons who are going through or have gone through major lifestyle changes such as moving, divorce, becoming disabled, etc.

• Persons who have friends or persons who tend to take advantage of their favorable monetary situation
• Persons who are not good with handling their economic affairs or otherwise not good with money
• Persons who are too trusting and not protective of themselves

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

As a beneficiary or heir of an estate, you have options and legal rights under Georgia state law to have a will or other document declared null and void and set aside, recover assets and/or monies, damages, and possibly attorney’s fees. The Libby Law Firm represents heirs, and beneficiaries, in all Georgia wills, trusts, probate and estate disputes and litigation. We provide experienced legal representation through exceptional Atlanta Probate Attorneys. Our Firm has many decades of combined experience through its experienced Atlanta Probate attorneys and staff. We can assist you whether you are an heir or beneficiary. We also represent executors, administrators, and personal representatives in wills, trusts, and estate litigation matters.
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Georgia estate disputes can easily ruin relationships between family members. These types of issues include Georgia will contests and sticky situations such as the removal of a family member deemed unfit to be the executor of the will. We can all think of examples of famous estate disputes that have resulted in long drawn-out legal battles that last for years, even some that extend beyond the lifetime of the heirs. Due to the emotionally charged nature of probate hearings, when an issue comes to the surface during probate it is difficult to solve quickly without more emotional and financial damage to family members and a loss of estate assets.

Mediation is one alternative to allowing disputes to be resolved in a protracted probate trial. The Probate Judge will often prescribe a court ordered mediation to resolve conflicts between heirs and beneficiaries. This is done before the probate proceedings start or just after they begin, when conflicts have just come to the surface. During mediation the parties involved can air their concerns, present evidence and confront each other on the issues. Anything agreed upon between the parties during mediation is binding and will carry forward into the probate hearing. An experienced Georgia probate litigation lawyer can assist in this type of mediation by helping participants present their position on the issues.

There are some red flags to consider indicating that estate disputes are likely and mediation should be considered. These include multiple marriages during the life of the deceased, children who are left out of a will, preferential treatment of people outside of the family, special treatment given to certain children and family members (other than the spouse), recent changes to the will that cut out specific heirs and when the administrator or executor are slow to perform the fiduciary duties required of them. If these conditions present themselves, it is a good idea to consult with an Atlanta, Georgia probate attorney with expertise in estate litigation, who also has experience with dispute mediation. With good legal representation, all sides in the dispute can receive fair treatment and the probate process can move forward before the estate’s assets are spent.
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The Will Contest and Litigation Lawyers at, The Libby Law Firm are skilled, experienced and resourceful. We have seen a steady increase in the rise of Georgia probate law based claims against Georgia Probate Court appointed executors for inventory and accounting, removal, money damages, and more. Georgia probate court executors have significant liability by assuming this position.

To the contrary, Georgia heir and beneficiaries have significant rights to know the what, where, when, and how of the estate’s status. They also have the right to force the executor to compile and Georgia estate inventory and accounting even if this is specifically not required by the will. The Georgia estate executor can incur personal liability if money or assets can not be accounted for and will likely incur personal liability for these monies and assets.

The basic remedies against Georgia Probate Court appointed executors can be found in The Official Code of Georgia Annotated (“O.C.G.A.”) § 53-7-54, which reads as follows:

(a) If a personal representative or temporary administrator commits a breach of fiduciary duty or threatens to commit a breach of fiduciary duty, a beneficiary of a testate estate or heir of an intestate estate shall have a cause of action:

(1) To recover damages;

(2) To compel the performance of the personal representative´s or temporary administrator´s duties;

(3) To enjoin the commission of a breach of fiduciary duty;

(4) To compel the redress of a breach of fiduciary duty by payment of money or otherwise;

(5) To appoint another personal representative or temporary administrator to take possession of the estate property and administer the estate;

(6) To remove the personal representative or temporary administrator; and

(7) To reduce or deny compensation to the personal representative or temporary administrator.

(b) When estate assets are misapplied and can be traced in the hands of persons affected with notice of misapplication, a trust shall attach to the assets.

(c) The provision of remedies for breach of fiduciary duty by this Code section does not prevent resort to any other appropriate remedy provided by statute or common law.

Even if you follow the necessary probate steps, there are times when you can find yourself involved in an Atlanta probate dispute or estate dispute. Some of these situations include, but are not limited to:

• Breach of Fiduciary Duty

• Interference with Inheritance

• Fraudulent Conveyance

• Misappropriation of funds, estate assets, estate inventory

• Self-dealing

• Conversion

• Negligence

• Accounting Claims

• And more

As an Atlanta Lawyer Atlanta, Georgia probate lawyer, I know that when a loved one has passed away, the process of going through the legal system to determine and distribute their estate can be a tremendous challenge. This process, for better or worse, is known as the Georgia probate process (commonly referred to as “probate”). Whether there is a will or not the Georgia court will assess the properties and pay off any outstanding debts before distributing the estate. First, however, they must determine if the will is valid, before assessing the amount of debts or taxes owed. Fortunately, the State of Georgia Probate Courts have made the probate process very easy and relatively inexpensive. Nevertheless, it is prudent to retain an experienced Atlanta, Georgia probate lawyer or Atlanta, Georgia estate attorney to ensure the probate process proceeds smoothly, fairly, and without incident.

NOTE – WHEN THE ADMINISTRATOR OR EXECUTOR RETAINS A GEORGIA PROBATE LAWYER TO REPRESENT THE ESTATE, THIS IS USUALLY AN ESTATE EXPENSE:

THE DOWNSIDE TO NOT RETAINING AN ATLANTA ATTORNEY TO REPRESENT THE EXECUTOR CAN BE DEVASTATING INCLUDING REMOVAL, PERSONAL LIABILITY, LOSS OF EXECUTOR FEES, CREATING ENEMIES IN YOUR FAMILY, AND PROMOTING SIGNIFICANT FAMILY DISHARMONY.

HAVING AN ATLANTA ATTORNEY REMOVES MUCH OF THE LIABILITY PERSONAL REPRESENTATIVES HAVE, PREVENTS ATTACKS ON THE EXECUTOR OR ADMINISTRATOR BY YOUR OWN FAMILY, AND DISSOLVES THE PERCEPTION OF BIAS, SELF-DEALING, AND MISAPPROPRIATION OF FUND, CONVERSION OF ESTATE ASSETS, AND MISMANAGEMENT OF ESTATE ASSETS. FAMILY HARMONY IS PRESERVED AS WELL. I DO NOT THINK YOU CAN PUT A PRICE OR VALUE ON THIS.
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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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North Georgia estate disputes can easily ruin relationships between family members. These types of issues include will contests and sticky situations such as the removal of a family member deemed unfit to be the executor of the will. We can all think of examples of famous estate disputes that have resulted in long drawn-out legal battles that last for years, even some that extend beyond the lifetime of the heirs. Due to the emotionally charged nature of probate hearings, when an issue comes to the surface during probate it is difficult to solve quickly without more emotional and financial damage to family members and a loss of estate assets.

Georgia Probate Mediation in the North Georgia/Metro Atlanta area, is one alternative to allowing disputes to be resolved in a protracted probate trial. The Probate Judge will often prescribe a court ordered mediation to resolve conflicts between heirs and beneficiaries of a Georgia Estate. This is done before the probate proceedings start or just after they begin, when conflicts have just come to the surface. During mediation the parties involved can air their concerns, present evidence and confront each other on the issues. Anything agreed upon between the parties during mediation is binding and will carry forward into the probate hearing. An experienced North Georgia probate litigation lawyer can assist in this type of mediation by helping participants present their position on the issues.

There are some red flags to consider indicating that North Georgia estate disputes are likely and mediation should be considered. These include multiple marriages during the life of the deceased, children who are left out of a will, preferential treatment of people outside of the family, special treatment given to certain children and family members (other than the spouse), recent changes to the will that cut out specific heirs and when the administrator or executor are slow to perform the Georgia Law Required Fiduciary Duties required of them. If these conditions present themselves, it is a good idea to consult with an Atlanta, Georgia probate attorney with expertise in estate litigation, who also has experience with dispute mediation. With good legal representation, all sides in the dispute can receive fair treatment and the probate process can move forward before the estate’s assets are spent.
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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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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 – The Libby Law Firm ATLANTA PROBATE ATTORNEYS, GEORGIA ELDER ABUSE LAWYER, ATLANTA, GEORGIA ESTATE AND GUARDIANSHIP LAWYERS – MAIN OFFICE IN ATLANTA, GEORGIA-BUCKHEAD NUMBER: (404) 467-8611. 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 The Libby Law Firm. 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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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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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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