Articles Posted in WILLS, TRUST & ESTATE LITIGATION

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As a Marietta, Buckhead, Sandy Springs, and Atlanta Probate Attorney, I have seen the tell tale signs that there are many advantages to establishing a solid Georgia estate plan, yet most people do not have one. Even when a plan does exist with a will, it is possible that the will has not been updated in years. Unfortunately, an out-of-date will can be as costly as not having any will at all, as heirs and beneficiaries will inevitably fight over assets in the estate. As an Atlanta, Georgia Probate Litigation Lawyer, my team and I are experienced in all areas of estate planning and litigation and have helped clients set up effective estate plans that minimize conflict and maximize asset distribution.

Moreover, should you not proceed with properly setting up your estate through a number of different tactics, you could be setting legacy up to being remembered by an embattled North Georgia Will Contest and Protracted Georgia Probate Litigation in North Georgia.

Ultimately, the Court’s goal is to close the estate by distributing the assets. Steps in the probate process include proving the validity of an existing Georgia will, determining if a named executor is fit to administer the estate and appointing a replacement if necessary, appointing an administrator if no will exists, accounting for estate assets, paying debts and taxes, and distribution of any remaining assets per the will or per state law, in the absence of a valid Georgia will.

This probate process is very efficient in Georgia, but some fees and court costs will be required. Legal counsel and other expenses related to the proceedings will be paid for out of estate assets. Additionally, any costs associated with Georgia probate litigation resulting from conflicts between the heirs, beneficiaries, executors or administrators are payable by the estate. Besides the monetary cost of such conflicts, long-term damage to family relationships is common and is best avoided if possible.
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Diligent Probate Lawyers in Atlanta, Georgia, like AThe Libby Law Firm, which consist of former members probate lawyers in Atlanta, Georgia; most notably, The Libby Law Firm, have many clients seek out their counsel on how to receive fair treatment during probate proceedings. As an heir or beneficiary of a Georgia Estate, many primary areas of concern arise concern including mismanagement of the estate and lack of information given to them about the assets of the estate. The executor or administrator handling the Georgia estate may be a family member, a friend of the family, a business associate of the decedent or an impartial third party.

Any perceived wrongdoing may be intentional or innocent. There certainly are individuals who will take advantage of the responsibility of being an executor or administrator for personal gain, but there are also individuals who do not fully understand the nature and extent of the required duties. This lack of understanding can also result in misconduct.

Under any circumstance, heirs and beneficiaries have specific rights that are enforceable under Georgia probate law. An executor or administrator has a fiduciary duty that must be carried out as described by the Georgia Probate Code. If these duties are not completed properly, the executor or administrator can be removed and legal action can be taken against that individual.

Here is a list of the rights of beneficiaries and heirs under Georgia law:

• The right to information about the original assets of the estate and an inventory of these assets

• The right to request an accounting of assets

• The right to review and approve the level of compensation that the executor or administrator will receive for administering the estate

• When not in agreement with the compensation level for the executor or administrator, the right to have the court set the compensation level

• The right to receive estate assets in a timeframe that is reasonable for the complexity of the estate

• When dissatisfied with the executor or administrator for a justifiable reason, the right to have that individual removed and replaced by the court

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

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

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

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

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

• Removal of the executor or administrator

• Replacement of the executor or administrator

• Require that the executor or administrator perform the assigned duties

• Require that the executor or administrator pay back stolen money or assets lost due to the breach

• Have the executor or administrator compensate the petitioner for losses

• Placement of wrongfully distributed estate assets into trust until it is decided who should receive the property

• Non-payment or reduced payment of statutory fees to the executor or administrator by the estate

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As a Trust Litigation Lawyer in Atlanta, I have witnessed first hand that Georgia trusts can be one of the most incredibly useful investment vehicles for safeguarding assets, and protecting and benefiting trust beneficiaries. These same Georgia trusts, can be one of the most abused legal entities when incompetent or dishonest trustees negligently or intentionally mismanage trusts to the detriment of the trust beneficiaries.

Georgia trusts can be created to provide money, real property, and other assets to family members or other parties after death, or during life. Trusts can be set up in numerous fashions and for many reasons. There are many types of trusts including revocable trusts, irrevocable trusts, marital trusts, and trusts for minor children. These trusts can be used as part of an estate plan to control the distribution of assets or for tax planning purposes. A trust is a valuable part of a Georgia estate plan, but even a well-drafted Georgia Trust with the best provisions, clauses, and intentions, which are clearly and concisely defined and enumerated, can be defeated by disputes between beneficiaries and trustees.


Many of the Georgia Trusts Our Firm handles are as follows:

• Revocable Trusts • Irrevocable Trusts • Irrevocable life insurance trusts • Revocable living trusts • Long term care insurance • QTIP and QPRT trusts • Crummey trusts and other gift transfer options • Family business partnerships or asset trusts • Educational or charitable remainder trusts • Generation skipping trusts • Grantor retained trusts • Special needs trusts

In my Atlanta, Georgia Trust Litigation Law firm, I have represented many clients involved in Georgia trust disputes and litigation concerning Georgia fiduciary law lawsuits and legal actions for breach of fiduciary duty. Trustees have a fiduciary responsibility to manage trust assets appropriately and act in the best interests of the beneficiaries. Any inappropriate behavior by the trustee is in conflict with the basic fiduciary duty of that individual. In some cases, fraudulent conveyance and outright self-dealing regarding trust assets is discovered by beneficiaries and will prompt taking action for removal of the trustee. Trustees can be removed as the result of lesser negligence as well, such as in the case of mismanagement of assets, failure to provide an accurate accounting of assets, inadequate income generated by the trust or inadequate tax planning.

Many of the methods and theories we use to control trustees and protect beneficiaries are as follows:


• Demand Inventory and Accounting • Reformation of Trusts • Trust and Will Construction – Interpreting the Trust • Dissolution of the Trust Due to Trust Purpose Being Defeated • Change/Removal of Trustee • Violations of Prudent Investor Rule • Self Dealing by Trustee or Others Under Their Direction • Misappropriation of Trust Funds • Neglect of Trustee Duties/Fiduciary Duties and Responsibilities • Usurping Trust Opportunities for Personal Gain • Abuse of Trust Power • Use of Trust Power for Gain or Upper-Hand in Negotiations and/or Business Affairs • Constructive Trusts to Protect Beneficiaries

If any type of wrongdoing or negligence is suspected on the part of a trustee, it is critical you immediately seek the qualified counsel of an Atlanta, Georgia trust litigation lawyer immediately. An experienced Georgia trust lawyer will ensure that the proper conditions exist for the removal of the trustee. These conditions include breach of duty, failure or refusal to administer the trust adequately or, in the case that all beneficiaries request the removal of the trustee, that the removal supports the purpose of the trust and is in the best interest of all beneficiaries. Our Atlanta Trust Attorneys can also request the court impose a Constructive Trust on trusts assets or the fruits of the trusts assets. Thus, any monies or assets relating back to the misused trust assets are attached to the constructive trust until matters of the misuse and whereabouts of trust assets can be tracked and recouped.
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In my Firm’s Atlanta, Marietta, Buckhead, and Sandy Springs Probate Law Firm, I have found Georgia estate litigation is on the rise. For the most part, the Atlanta, Georgia Probate Litigation lawyers at my Fiduciary Law Firm attribute this to an increase in breach of fiduciary duties among executors, administrators, and powers of attorney. The most common type of disputes we see involves breach of fiduciary duty by the executor or administrator of an estate (also called the personal representative). These personal representatives are assigned the task of managing the distribution of estate assets and are responsible for the fair and honest treatment of beneficiaries and/or heirs during this process. During the course of probate, personal representatives have specific duties under Georgia Fiduciary Law, including the task of handling all estate assets such as real estate, collectibles, cash, bank accounts, retirement accounts, investments, and insurance policies. It is the fiduciaries responsibility of the personal representative to manage this process honestly, efficiently and in the best interests of all beneficiaries and/or heirs.

When a Georgia personal representative is assigned by the decedent in a will, or by the court in the absence of a will, or when the individual named in the will is unable to serve, the expectation is that the personal representative will conduct the required tasks without self-dealing or favoritism towards any party.

Breach of the fiduciary duties required by state law can include the following:

• Theft – directly stealing assets from the estate

• Conversion – indirectly stealing from the estate, for example by liquidating assets for less than their true value and keeping the difference
• Fraud – undermining the will by taking bribes or through dishonesty
• Acting out of Incompetence or Negligence – failure to complete duties correctly and within an acceptable period of time
• Overcharging for Services – charging exorbitant fees for the administration of the estate
• Conflict of Interest – a personal interest in the estate or in the outcome of the probate process

When breach of fiduciary duties and/or responsibilities are suspected, beneficiaries are entitled to swift legal action that will protect their interests. The Atlanta estate litigation lawyers at The Libby Law Firm are versed in all aspects of probate litigation, including the initial phases, which often include mediation. Besides representing heirs and beneficiaries, we are also exceedingly experienced in preparing strategies for wrongfully accused fiduciaries to show that the estate is being managed properly and in a timely fashion under the circumstances, with no occurrences personal benefit or self-dealing.
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In my Atlanta, Georgia Probate Law firm, I see many instances where beneficiaries and heirs have waived their rights granted by Georgia law during probate proceedings. One of the areas that this occurs in is in relation to the inventory and accounting of estate assets. Executors and administrators are required to provide a complete inventory and accounting of the estate’s assets and liabilities within approximately six months from their appointment. Georgia probate law does not specifically require that six months is a strictly set period for an executor or administrator to complete this task. Thus, depending on the complexity and circumstances surrounding the estate, the court may allow more time for the task to be completed.

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

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

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

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

The fact is, you have certain rights as a beneficiary or heir involved in a Georgia probate proceeding. Always consult with a skilled Atlanta probate attorney before you sign any documentation wherein you might waive your rights under Georgia probate law. I would also be extremely hesitant to feel comfortable and trusting of the advice the executor or administrator’s attorney gives you. Remember, everyone involved in the estate proceeding has their own agenda. Likewise, you should have your own lawyer to assist you.
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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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Georgia last will and testament statues clearly outline the requirements for the creation and execution of a valid will. When these strict requirements are not met, the will is considered invalid and the testator’s estate becomes subject to the Georgia laws of intestacy, just as if no will had been created or executed. In our Atlanta probate law firm, our lawyers often represent clients with probate issues that could have been avoided if proper will drafting and will execution practice had been strictly followed. The consequences of failing to properly execute a will can be devastating for those surviving the testator. This situation can also constitute malpractice for the drafting and executing attorneys or law firm. When a will is deemed invalid because of failure to execute the will with the proper formalities, Georgia intestacy laws dictate how the estate assets are distributed. These types of cookie-cutter arrangements bypass the true intent of the deceased and may lead to conflict among the surviving heirs.

The following are some of the steps to keep in mind when executing a will in Georgia. The person executing the will, the testator, must be at least 14 years old. The will must be in writing, although the law does not specify a particular format, except that it cannot be handwritten. The will needs to be signed by the testator, who must be sufficiently competent (of sound mind and memory) at the time the will is executed, know the nature and extent of their assets, and that they are executing a will voluntarily and of their free will. In Georgia, another person can assist the testator in signing the will. This is legally sufficient when it is done in the presence of the testator and at the express direction of the testator. A minimum of two witnesses must also sign the will in the presence of the testator. The witnesses must view the signing of the will by the testator as defined by the “line of sight” rule. This means the witnesses must have an open and unobstructed line of sight to the testator’s signing of the will.

Should a witness also be beneficiary under the will, he or she must forfeit their inheritance under the will for their act as a witness to be valid, and as a result, the will to be valid. Thus, witnesses whom are beneficiaries to a will should not be a witness to the will. As a last resort, however, the testator may have three or more witnesses to their will. Under Georgia Code Section 53-4-23, a witness who is also a beneficiary may receive testamentary gift from the estate only when a minimum of two other witnesses sign the will. In this case, the other two witnesses cannot be beneficiaries. A useful and increasing necessary document to attach to the will is a self-proving affidavit. While it is not a requirement, this document proves that the will was properly executed and is genuine. It should be signed by the testator, the witnesses and certified by a notary public. Without a self-proving affidavit, one of the witnesses must be located at the time of the testator’s death and sign a legal document called “Interrogatories to Witness to Will. In this legal document, the witness attests to the validity of the will he or she witnessed. Further, the witness may be required to appear in court and give testimony under oath. With the self-proving notarized affidavit, this is not necessary and the will is likely admitted to probate without any delay.
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The Atlanta, Georgia, fiduciary and Estate Litigation lawyers have seen a striking increase in the exploitation of the elderly through powers of attorney. Make no mistake about it; abusing the fiduciary duty imposed under Georgia law for the holder of a power of attorney is tantamount to stealing. It is white-collar crime at its worst. Our Atlanta, Georgia breach of fiduciary duty lawyers have significant experience in rectifying the misuse and abuse of a power of attorney. Our Firm is also aggressive in recovery of the exploited funds.

A Georgia power of attorney gives someone else the legal capability and power to act on behalf of another without their presence. Oftentimes, powers of attorney entail taking over extremely important day-to-day affairs of another and usually involve legally taking over their finances. While powers of attorney can be an effective tool to assist elderly and other persons with diminished capacity and ability, they are easily used to exploit the elderly or other persons with diminished mental or physical capacity. What is more, power of attorney documents are easily obtainable and can be purchased in kits from office and legal supply stores or downloaded online, sometimes free.

In these troubled economic times, family members, friends, and other persons have been using powers of attorney for their own financial gain by taking advantage of the elderly through the use of these documents. If this abuse goes unchecked, the assets, and sources of income of an elderly or incapacitated person can be devastated. In fact, the damage done can be limitless and usually is permanent unless it is possible to recover the assets back from the person who abused the power of attorney.

It is sad, but necessary in this day and time to be very guarded and protective of anyone holding a power of attorney. This is as true for a family member. As the old adage goes: It seems to be the ones you are closest to that hurt you the most. In fact, oftentimes, it is the family member or friend who borrows a little money with the characterless belief they will pay it back.

With the economy worsening, the temptation to acquire and/or abuse a power of attorney is ripe for occurring.

Who should I be on the lookout for?

• Acquaintances
• Family Members (especially ones in financial trouble)

• Scam artists

• Someone who befriends an older person
• Any person who exhibits strange and engaging activity, interest, and behavior toward an elderly or person with diminished capacity or ability

Setting up the power of attorney properly to lessen the chance of abuse.

• Seek advice and retain an attorney to create the power of attorney and explain how they work.

• Limit the powers granted under the power of attorney to those duties necessary for the purpose of the document. A “blanket” power of attorney is dangerous!

• Require the agent to provide a semiannual accounting in the power of attorney, which must be provided to a number or responsible persons who understand accounting and willing to take the time to see that the power of attorney is being used appropriately.

• Require the agent to keep all documentation pursuant to the power of attorney, such as receipts, bank statements, a daily or weekly journal or account ledger, etc.

• Consider a court-appointed conservatorship rather than a power of attorney. The courts require reports to be submitted and these are reviewed by the court staff, are public record, and open for inspection.

• It is best to have one person as agent under a power of attorney as co-powers of attorney only create confusion and result in disagreements.

• Should you be acting under a power of attorney for another, keep detailed, hard copy, and electronic copies of all records. Remember, you have a fiduciary duty as you are acting on behalf of another person. You are required by Georgia law to do what is in the best interest of the other person, which may be contrary to your own best interest and wishes.

Our Atlanta, Georgia estate and probate lawyers advocate that any power of attorney should not be entered into without serious consideration, substantial disclosure, and protections in place.


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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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