Articles Posted in WILL CONTESTS

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As a probate attorney in Atlanta, Georgia (and the surrounding Buckhead, Sandy Springs, Marietta, North Georgia, and Metro Atlanta Areas), who specializes in Atlanta, Georgia, Probate Litigation, my clients frequently ask how they can avoid the Georgia probate process altogether. There are several reasons to want to sidestep probate, including speed of distribution of the assets to beneficiaries and the cost of the process, in both time and money. Privacy may be an issue as well. Probate proceedings are a matter of public record, so non-probate asset classification provides the estate and beneficiaries with anonymity. Only non-probate assets that contractually name a beneficiary can escape probate, but with a little planning many assets can be classified in this way. Common examples of non-probate assets are as follows:

Common examples of non-probate assets are tax-deferred retirement accounts, like 401(k) and IRA accounts, and proceeds from life insurance policies. Bank accounts can also be classified as non-probate assets when set up as Payment on Death Bank Accounts. The same can be done by setting up bonds, Stock and brokerage accounts as Transfer on Death Securities. Under either of these methods, the beneficiaries have no interest or access to the assets while the owner is alive and ownership of the assets is only transferred to the beneficiaries upon death. To protect real estate holdings or financial accounts, they can be set up with Joint Tenancy with Right of Survivorship. This structure is common between married couples and automatically transfers the assets to the survivor when one of the owners dies.

Living trusts are another effective way to circumvent the probate process. A Georgia revocable living trust allows property to transfer directly to the beneficiaries named in the trust. Once this type of trust is set up, title to the assets passes to the trustee who has the job of managing the trust during the life of the grantor. In Georgia, the grantor can also be named as the trustee. As trustee, the grantor has free access to the assets while alive and may sell, trade, buy, liquidate or donate the assets. A common misconception is that once assets are transferred into a trust, they are protected against all claims from creditors. Yet, because the assets are under the total control of the grantor, the trust does not stop creditors from pursuing the assets. Nevertheless, it is more difficult for assets to be taken from a trust, as creditors in Georgia must file a petition in court to do so. Another advantage of Georgia revocable living trusts is that the grantor can change the terms of the trust or reclaim title to the property at any time. Upon the death of the grantor, a successor trustee distributes the property directly to the beneficiaries after death of the grantor.
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As an Atlanta Lawyers; Especially Atlanta Will Challenge Lawyers, I have seen the number of cases on the rise. As an Atlanta, Georgia Probate Litigation lawyer, I have represented many clients in different types of will contests. Especially common are the cases that involve undue influence in the writing of wills. When undue influence is found to have played a role in the writing of the will, then the court can determine that the will is null and void.

Undue influence occurs when an act takes place that overcomes the victim’s free will. Undue influence is most likely when there is a confidential relationship between those involved and when one of the parties is of greater mental capacity. The confidential nature of the relationship and ability of one party to exert influence over the other party due to a superior intellect are the key factors that allow the manipulation to go unnoticed.

Many cases of undue influence occur between parents and children. When a close relationship exists between one child and the parent, it is possible for the child to manipulate the parent into signing a Georgia will that favors that particular child. It is also possible for the influence to come from outside the family, for example from a hired caregiver who spends large amounts of time with the elderly person.

When faced with a case of undue influence regarding a will, the Georgia probate court will examine the mental state of the deceased at the time that the will was executed. Evidence of mental or physical coercion is required. Because direct evidence is difficult to collect (since the victim is deceased), the courts will rely on circumstantial evidence for proof. The court will try to determine if:

1) the decedent was easily influenced, due to age, health or general mental state

2) the person suspected of undue influence had an opportunity to coerce or manipulate the victim

3) the person suspected of undue influence had the motive or disposition to influence the victim

4) the person suspected of undue influence was actively involved in creating the will

5) the will appears to have been influenced


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Atlanta Lawyers, Social Workers, Adult Protective Servicesand other persons and/or entities that focus on protecting (or preying upon) the older and aging population of the United States, know it is a common for most families to have an elderly parent who is independent enough to live alone, but who is unable to manage household expenses. In the interest of helping the senior maintain independence for as long as possible, a son or daughter’s name is frequently added to the senior’s bank account to facilitate payment of the expenses. In addition to paying any bills from the account, the joint account holder will be able to keep an eye on the outflow of monies and perhaps oversee any transactions that the senior does make. How the account is set up when the additional person is added, though, can have an impact on the outcome of any Georgia probate proceedings upon the death of the parent.

When creating a joint bank account, inserting the word “or” between the names of both account holders is a simple way to allow for either party to process transactions independently. While this facilitates the payment of expenses as described in the previous example, if one account holder dies, it also allows for all funds in the account to pass to the surviving account holder. When the second person is a spouse or the only surviving relative, this may not pose a problem. But when there are other heirs, a dispute may take place if the heirs feel that they are entitled to a portion of the funds. The question of who receives the funds will be addressed during probate proceedings, as the true intent of the deceased is investigated. Most commonly, the proof of how the money will be divided up is found in the will. But with no will, or if the will does not clearly state how the funds are to be allocated, the court will needs to determine if the second account holder was added only for the sake of convenience or if it was the true intention of the deceased to gift the funds to the second account holder.

When the word “and” is used between two names on a joint bank account, no transactions on the account can be processed without the other party’s signature. This is common in Georgia business partnerships where the inflow and outflow of funds needs to be closely monitored. Under this scenario, in the event that one account holder dies, half of the funds will pass on to the estate of the deceased and half of the funds will pass to the surviving account holder. This set up is not common in family dealings and does not usually cause a dispute during Georgia probate proceedings.

The types of joint account disputes involving family members can be avoided by asking an experienced and qualified Georgia probate attorney to set up a will that clearly defines your desired intentions. Keep in mind that while probate proceedings resolve issues on these difficult and emotionally charged cases, your heirs are the ones who will live not only with the outcome, but also with the consequences caused by any drama that plays out during the proceedings. With the proper planning you can eliminate this turmoil and create a positive experience for your loved ones.
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As a Georgia probate attorney who practices in the metro Atlanta area, I have found my probate law firm practice has recently changed its focus. In large part, this is due to the need for answers and accountability on the part of executors and administrators.

I am finding more and more heirs and beneficiaries calling into my office with the same complaint against the executor or administrator of the Georgia estate. These concerns center around the executor or administrator refusing to provide the beneficiary or heirs of the estate with an accounting and an inventory of the Georgia estate assets. The common runaround the executor or administrator usually gives the beneficiary or heir is they have no duty to provide such information. However, Georgia beneficiaries and heirs should know they can make a legally binding request in writing to the executor and administrator of the estate for an inventory and accounting of estate assets. Oftentimes beneficiaries or heirs have waived this right, but they can renounce this waiver in writing and move forward with a petition for inventory and accounting. O.C.G.A. § 53-7-32 (2008) provides as follows:

§ 53-7-32. (Revised Probate Code of 1998) Waiver of right to receive; relieving personal representative of duty to make

(a) Any beneficiary of a testate estate or heir of an intestate estate may waive individually the right to receive the inventory from the personal representative. Such waiver shall be made in a signed writing that is delivered to the personal representative and may be revoked in writing by the beneficiary or heir at any time.

If you are worried about the monetary, fiscal, or fiduciary mismanagement of a Georgia estate to which you are a beneficiary or heir, you have options and rights under Georgia probate law. The Libby Law Firm represents beneficiaries and heirs in all stages of probate proceedings to get answers from unfair, dishonest, and deceitful executors and administrators. The Libby Law Firm welcomes the opportunity to assist you in filing a petition for inventory and accounting and acquiring the answers you deserve.
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As a Georgia will dispute lawyer in Atlanta, Georgia, . . .

I surmise that if you are creating your will, you will likely want to reduce the chances of your loved ones squabbling over your estate and ending up in lengthy court battles. Avoiding a Georgia will contest, however, begins the moment you start to contemplate making your will.

At The Libby Law Firm, our Atlanta will dispute attorneys can help minimize confusions surrounding your will and draft a will that will distribute your estate exactly as you desire, without the risk of will contests arising. After all, if a will is found to be invalid or thrown out, then you risk your estate being distributed according to Georgia law, also referred to the Georgia Laws of Intestacy.

GOOD DRAFTING AND PLANNING

It is crucial to hire an Atlanta will lawyer with the experience and skill needed to draft a solid will document. If you have a significant amount of wealth to distribute, you need to be careful about “disinheriting” anyone. Disinheriting family members, no matter the reason, usually sets the grounds for will challenges and disgruntled family member arguments. It is best to divide your estate accordingly.

CONSIDER GIFTING ITEMS BEFORE YOUR DEATH

It is wise to consider giving relatives and loved ones valuables and monies ahead of time, to avoid any arguments and challenges. The more “lifetime giving” you can engage in, the better off you will be. Consider establishing trusts and other such funds for beneficiaries.

INSERT A NO CONTEST CLAUSE IN YOUR WILL (OFTEN CALLED AN
“IN TERROM” CLAUSE)

You can insert a “no contest” clause in your will document that will prevent heirs from challenging your will’s validity in court. While it is still possible to challenge this clause in court, it may help decrease the likelihood of a disgruntled heir contesting your will.

CONTACT AN EXPERT IN ATLANTA WILL CONTESTS, WILL DRAFTING, AND GEORGIA PROBATE

At The Libby Law Firm, we understand the complications that surround wills and estates. As such, we can help you prepare for the future and create a will that is designed to divide your estate in accordance with your wishes and desires. If you are concerned about the possibility of a will contest, call us today for a consultation. The Atlanta will contest lawyers at The Libby Law Firm can help you determine which course of legal action is right for you.
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As an Atlanta Fiduciary Dispute Lawyer, I often come across persons who believe that once someone signs a Georgia Power of Attorney, then it’s over and all control has been surrendered to the person designated. It’s not that simple.

In Georgia, Power of Attorney Abuse is common and a terrible problem. Oftentimes, family members, hired help, and other persons take advantage of elderly or disabled persons through a Abuse or Misuse of a Power of Attorney. The Georgia Supreme Court the Abuse of a Power of Attorney in Greenway vs. Hamilton

As an Atlanta Power of Attorney Abuse Lawyer, I have seen many different schemes to use a Power of Attorney in an unlawful manner. A common theme is the “conversion”, or misappropriation assets using a Power of Attorney, before these assets become part of an estate. This is because assets of an estate are usually much more heavily guarded by the heirs and beneficiaries.
If you believe a Power of Attorney is being abused, there are several options you can take. First, you should seek out a qualified Atlanta, Georgia Fiduciary Lawyer to assist you in your undertakings. Some options your attorney can assist you with are as follows:

• Filing a complaint with adult protective services

• seeking a guardianship and conservatorship in probate court

• Confront the person abusing or misusing the power of attorney


• Talk to other family members about the situation

• Retain an experienced Fiduciary Law Lawyer

TAKE ACTION: THERE IS NO SUBSTITUTE FOR SEEKING LEGAL ADVICE AS SOON AS YOU KNOW ABOUT, OR SUSPECT, ABUSE OF AN ELDERLY OR DISABLED PERSON THROUGH THE ABUSE OR MISUSE OF A POWER OF ATTORNEY

First, a Power of Attorney is only valid if it is executed in compliance with Georgia law.
It must be in writing and properly dated. The party who holds the Power of Attorney has a Fiduciary Duty.

The person signing the document must be legally competent at the time of signing. When the person signing the document has dementia or Alzheimer’s or similar conditions, medical records and opinions from doctors and experienced elder law attorneys can be ways to establish competence.

Second, even with a valid Power of Attorney there is a Fiduciary Duty in Georgia to act in the best interests of the principal who signed over their POA. Thus all decisions must be based on what is best for them, not what is most convenient for the designee (aka Agent or Attorney-in-Fact).

For financial decisions, the legal duty requires the designee to, at the very least, refrain from self-dealing. The designee has a Fiduciary Duty to manage assets prudently with the goal of helping the principal who owns the assets. When the principal has significant assets, following the advice of a credentialed, knowledgeable, and ethical financial planner may be essential. It is also helpful to have an Atlanta, Georgia elder law attorney knowledgeable about spotting unsuitable investments review financial plans, recommendations, and decisions.
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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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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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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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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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