Articles Posted in WILLS, TRUST & ESTATE LITIGATION

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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 experienced Atlanta Probate Lawyer, I have repeatedly seen first-hand the frustration a beneficiary or heir can experience if the executor or administrator of a Georgia Probate Estate refuses or is unwilling to provide the beneficiaries or heirs with answers concerning the status of the estate. I also understand the difficulties a non-responsive, uncaring, or vindictive executor or administrator can cause by imposing their “perceived” powers upon the beneficiaries or heirs of an estate. Fortunately, for the beneficiary or heir subject this unjust behavior, these executors or administrators must carry out their fiduciary duties imposed pursuant to TITLE 53 of the Official Code of Georgia Annotated entitled “WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES”.

Moreover, the Georgia executor or estate administrator has to move the Georgia estate administration process along expeditiously and in the best interests of all persons who are interested in the estate and with due regard for their respective rights. This implies a “reasonable” amount of time in which matters are to move forward.


Nevertheless, regardless of the high standards and accountability to which a fiduciary is held, if you do not seek legal counsel to address these matters and compel answers, the Georgia Probate Courts will not likely hold accountable these Georgia Estate Fiduciaries. As a beneficiary or heir, it is up to you to seek relief by asserting your entitlement to answers and compelling answers due under Georgia Probate law and using the powers of the Georgia Probate Courts to obtain answers. The fact remains, even if you have signed documents giving the executor or administrator broad powers and waivers under Letters Testamentary or Letters of Administration issued by the Georgia Probate Court, you can still request and receive answers from the executor or administrator of the estate. However, matters have become much more complex and it is wise to seek the counsel of an experienced Atlanta Probate Lawyer or Atlanta Estate Litigation Law Firm.

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The Atlanta, Georgia, will litigation lawyers of The Libby Law Firm have seen an increase in will contest lawsuits. One of the areas we have seen an increase is the assertion of undue influence. Often this occurs when one sibling tries to exploit a family member with diminished mental or physical capacity in order to obtain a more favorable distribution under the will than another. One sibling’s close relationship to a parent often presents an opportunity for deception and manipulation to occur. If the will is made with unwarranted influence, the will’s validity may be challenged.

The Georgia Supreme Court case, Morrison v. Morrison, 282 Ga. 866 (2008) provides some guidance regarding what constitutes undue influence. In Morrison v. Morrison, one sibling sued another claiming that he used undue influence over his father to convince him to select a particular attorney and then participated with that attorney to create a more favorable will. In this case, the Georgia Supreme Court determined that no undue influence existed because the father was not of “weak mentality” when the will was executed nor did the one sibling occupy a “dominant position” with regard to his father. In fact, the court said, “that the father remained strong-willed and stubborn, not feeble or easily confused, and that he liked to be in charge. ” Morrison, 282 Ga. 868.

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.

To the contrary, The Georgia Supreme Court found undue influence existed in a noteworthy case, Bailey v. Edmundson, 280 Ga. 528 (2006). Baily v. Edmundson is an especially case because it provides a list of factors to consider in determining undue influence, including:

• Whether the parties had a confidential relationship;

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

• 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.

Although undue influence may occur in many different circumstances, parents may be particularly susceptible to undue influence from one of their own children.


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The Atlanta, Georgia, will contest lawyers at our Firm have seen a rise in the number of shameful and disgraceful “primary persons,” “caregivers,” and “significant others” who attempt to seemingly base their living on their ability to give rise to their fortune through the misappropriation of another’s funds “in disguise” – through inheritance via the will. This is usually to the exclusion of the rightful and normal beneficiaries and heirs; the family members – the loved ones.

Our Georgia will litigation firm has noteworthy experience advising and representing clients in seeking out the “truth” in their case proving the invalidity of a will through full discovery. Our Firm usually advises to seek full discovery through means such as the following: Request for Admissions, Interrogatories, Request for Production of Documents, Depositions, Psychiatric Evaluation Orders; and all other available means, pursuant to the Georgia Civil Practice Act. In fact, our Atlanta, Georgia will and estate litigation lawyers usually seek a jury trial in most instances — NOTE: You can have your jury trial in all the Georgia probate courts where the county has approximately 96,000 residents or more – (See recent U.S. Census).

I find these three (3) guidelines helpful for the rightful heir or beneficiary who seeks justice, normality, and comfort in any disputed will case.
The reasons are as follows:

REMEMBER THIS NO. 1: This is about what has been done and what must be made right upon the findings of an impartial jury or the court. You are none the lesser and all the better for asking the questions and being outspoken and sincere.

REMEMBER THIS NO. 2: You are the family member or loved one left out. This is unusual and not the norm. It is a natural sequence of events to take care of another family member after death through a will or other instrument, no matter the circumstances. This includes both monetarily and otherwise. Most people know there is little they can do to provide a stable and comforting future without leaving assets.

REMEMBER THIS NO. 3: Do what you need to do to put matters to rest. If you let this bother you without taking action and finding an outlet to discover the truth, these feelings could haunt you for sometime if not forever.

Our Atlanta will and estate litigation law firm knows and understands the legal ins-and-outs of the disposition of a departed person’s estate through their will. It appears that there is not much left to the imagination of the proverbial predator upon the family assets and the unknowing family, friends and rightful beneficiary and heirs who fall in the wake.
Georgia Probate Courts have found the following legal reasons as sound justification that the will is not legally sound and held such will is void as a matter of law:

• Duress – A decedent under pressure to do what they would not normally do, act how they normally act, or other such actions where a decedent has acted with pressure upon their “real” wishes and desires.

• Coercion – A decedent under pressure through extremes put upon themselves by themselves and others (perhaps the person seeking to be named in the will).

• Undue influence – Using tactics and other immoral and untrue acts to put pressure on a decedent to change their will.

• Lack of Capacity – Alzheimer’s, Dementia, Chemotherapy, medications of all sorts, etc.

• Incompetence – A person not able to act on their own accord who must be told what they are to do – this is oftentimes combined with incapacity.

• Mistake of Fact – A person making a will under false pretenses, lies and untruths told by another or coming to their mind through a mental disorder.

• Fraud – A person who has done the right thing and this has been changed through trickery, lies, deception, and sometimes acts of forgery, page replacement, and other deceptive acts.

• Senseless Dispositions — They are not dispositive of the decedents inability to act, but do tell a story all their own.

If you are concerned about the final disposition in the will of a family member, friend, confidant, lover, or other important person, The Libby Law Firm represents potential heirs, beneficiaries, estates, and personal representatives in all stages of probate cases.
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The Atlanta, Georgia probate litigation lawyers at our Firm who have lawsuits and disputes ongoing in Marietta, Cobb County; Atlanta, Fulton County; Decatur, DeKalb County; Lawrenceville, Gwinnett County, as well as other Metro Atlanta area county probate courts have seen breach of fiduciary claims on the rise.

The reasons behind this trend? THE ECONOMY!

It altogether makes sense to understand that in these troubled times, a Georgia executor, administrator, attorney-in-fact under a power of attorney, trustees, or other fiduciary, would “dip into the pot” of estate funds which are meant for the beneficiaries or heirs. The reasoning, we have concluded, is that no one will believe or be able to show that these fiduciaries have abused their powers by navigating estate funds into their own interest and use. Moreover, many Georgia beneficiaries and heirs do not know what their rights are and as such, do not know that fiduciaries have a vast and affirmative obligation upon them to “do the right thing” and manage the Georgia estate they are overseeing and controlling in the best interests of all of the beneficiaries and heirs.

On the contrary, altogether good executors, administrators, attorneys-in-fact, trustees, and other fiduciaries that are doing a good and adequate job are being accused of all sorts of heinous acts and breaches of their fiduciary duty by paranoid and overbearing beneficiaries and heirs.

If you feel that an executor, administrator, attorney-in-fact, or other Georgia fiduciary is not living up to their lofty obligations; The Libby Law Firm specializes in evaluating, scrutinizing, and analyzing the dealings of executors, administrators, attorneys-in-fact, and trustees who have fiduciary duties to others. If our Firm finds wrongdoing, we appropriately and often aggressively seek legal remedies for our clients.

Our Firm also specializing in assisting, guiding and defending executors, administrators, attorneys-in-fact, trustees, and other Georgia fiduciaries in carrying out their obligations in a legally proper and appropriate way. The Libby Law Firm also lends the appropriate support, care, and protection to the blameless fiduciaries in the course of carry out their duties. We also specialize in putting other fiduciaries back on track that have gotten off course or found they need the expertise of experienced Atlanta probate attorneys at the helm.
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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 a Georgia probate litigation lawyer who has represented clients in countless court and legal proceedings concerning Georgia estate disputes in probate court, I am seeing more and more breaches by executors, administrators, and agents for powers of attorney, of their fiduciary duties.

“Fiduciary Duty” Defined: A fiduciary duty is a legal relationship of confidence or trust between two or more parties. In a fiduciary relationship, confidence and trust is put into another, whose good faith, advice and protection are sought after and required by law.

The term fiduciary frequently is becomes issues in the management of Georgia probate estates by untrustworthy or self-dealing executors or administrators. In fact, it is more and more often, I am coming across breach of fiduciary duty cases and they have become quite common issues concerning executors and administrators in Georgia probate estate administration. My thoughts are that since we have fallen on tough times with respect to our economy, these Georgia executors and administrators are taking liberties with their fiduciary duties imposed by Georgia probate law.

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An executor or administrator is appointed by the GA probate court to perform the same administrative responsibilities when there is no Georgia will, the Georgia will fails to name an executor or no executor named in the GA will cannot or elects not to serve. Whether you are an executor or administrator, you must perform these important fiduciary duties imposed on you under GA probate law and in accordance with Title 53 of the Official Code of Georgia Annotated (O.C.G.A.), which governs “Wills, Trusts, and Administration of Estates.” Title 53 of Official Code of Georgia Annotated imposes significant and strict fiduciary duties and lofty legal obligations on the executor or administrator to the estate, beneficiaries, heirs, GA probate court and other “interested parties”.

These important legal obligations often have severe consequences if not performed in accordance with GA probate law and the fiduciary duties and executor or administrator has and the “personal representative” of the estate. By way of quick definition, GA probate law refers to both an executor and administrator the personal representative. In the alternative of performing all of the these extensive and burdensome fiduciary duties and administration obligations on their own, many executors or administrators retain an experienced GA probate law firm to guide them through their duties, obligations and to perform their fiduciary duties in accordance with GA probate law.

In the alternative, many GA probate and estate law firms step in and act as executor or administrator of the estate. One reason prudent Georgia executors or administrators retain an experienced GA law firm to assist them, guide them and prepare important legal documents for them, is that an executor or administrator who does not perform their fiduciary legal obligations can be held personally liable for their acts. This occurs more often than one might think. In my law practice as a GA probate attorney, I have seen all forms of serious accusations against executors or administrators and all forms of misdeeds done by executors or administrators. This holds true whether these mistakes any such were made because of poor performance, not performed at all or performed with unjust intent.

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As executor or administrator of a GA estate, you are entitled to the statutory fees for Georgia executors and administrators. These statutory fees are based on a percentage of assets taken into the estate, a percentage of income on estate assets during the administration of the estate and a percentage of assets distributed from the estate upon finalization and discharge of your fiduciary duty under the Official Code of Georgia Annotated and payable to an executor or administrator. Please note that these statutory fees as used in the Official Code of Georgia Annotated use the term; “personal representative” to refer to both an executor and administrator you should consult an experienced Georgia Probate attorney to understand these amounts.

IT IS VERY PROMISING IF NOT PROBABLE, THAT HIRING A GEORGIA ESTATE PLANNING AND PROBATE ATTORNEY AND LAW FIRM, WILL ACTUALLY SAVE THE ESTATE MONEY AND PRESERVE AND EFFECTUATE HARMONY AMONG THE BENEFICIARIES AND HEIRS OF THE ESTATE. THIS IS ESPECIALLY TRUE WHEN YOU RETAIN GA PROBATE ATTORNEY AND LAW FIRM WITH SIGNIFICANT PROBATE AND ESTATE DISPUTE LITIGATION EXPERIENCE. THE LAWYERS AND LEGAL TEAMS OF THESE FIRMS KNOW HOW TO RECOGNIZE POTENTIAL PROBLEMS THAT COULD ARISE AND PREVENT THEM FROM COMING TO FRUITION. BY THE SAME TOKEN, THE SAME GA PROBATE AND ESTATE ADMINISTRATION LAW FIRM CAN ADDRESS, REACT AND RESOLVE ANY PROBLEMATIC SITUATIONS BEFORE THEY BECOME MATERIAL ISSUES IN THE “EXPEDITIOUS” ADMINISTRATION OF THE ESTATE.

I believe almost everyone acting as a personal representative is better off with the help of an experienced Georgia probate lawyer. Despite this reality, many people named as personal representatives start out thinking they can handle the job without help. As time goes on and the duties and tasks required of them become more complicated, many realize they need the help of a professional Atlanta wills, trusts and estate lawyer.
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Atlanta, Georgia probate litigation Lawyers, who specialize in wills, trusts, estates and probate, as I do, tell clients and potential clients that meeting with an Atlanta, GA attorney to acquire an overview of how their assets are held is essential. This straightforward estate planning is indispensable because some assets are better suited when held or titled in a form under which the assets will pass outside of the purview of the Georgia county probate court. It is also a critical step to ensure that your assets pass to the persons or entities you desire and to avoid almost unavoidable fighting, bickering, probate disputes and probate litigation that develops when it is not clear where, and/or to whom, estate assets are legally to be distributed.

Unfortunately, most of us neglect to say why this is a good idea. In fact, if Georgia county probate courts didn’t happen to be in charge of granting marriage licenses, most Georgians might never encounter the word “probate” until they lose a loved one and matters are mixed up and confusing to say the least. However, this is not the Georgia county probate court’s fault in any way, shape or form. It is the lack of planning on the individual’s part that causes the potential and oftentimes devastating confusion and fighting amongst family members. As such, it is critical to meet with an experienced Atlanta, GA probate lawyer to set up your estate plan in a fashion which will avoid all of the above-mentioned confusion. In short, the old sayings go: “an ounce of prevention is worth a pound of cure” and “greed brings out the worst in people“. The fact of the matter is, if there are estate monies, stocks, assets, properties, etc. which are not clearly designated to an heir or beneficiary under an estate plan formulated by a qualified Atlanta, GA estate planning and probate lawyer, people will fight “tooth and nail” to get at these assets and make them their own. And, you can rest assured they will not come alone, they will come with their own Georgia probate lawyers, accountants, experts and the like. An experienced attorney can create an estate plan for you that can help to prevent these disputes, or at least minimize them to a large extent.
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