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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 an Estate Litigation Lawyer in Atlanta, Georgia, one of my duties when retained in a Georgia probate litigation case is to determine who is entitled to the estate assets of an individual after his or her death (the “decedent”). During this process, the assets are collected, debts are paid off, and any remaining property in the estate is distributed according to the deceased’s will. If the individual dies intestate––that is, without a will––then state law determines who receives the remaining assets.

The Georgia probate laws of intestacy are intended to ensure a fair distribution of the property to heirs of an estate. Likewise, the distribution of assets under a will is intended to distribute assets according to the wishes of the decedent. However, occasionally assets are improperly distributed by an executor or administrator as a result of undue influence, fraud, coercion, negligence, or other unlawful means. This improper distribution of estate assets is often done on purpose and constitutes unlawful actions of an executor or administrator and is a breach of their fiduciary duty. To prevent these unlawful actions, Georgia Constructive Trusts can be created which attach to the asset(s) and hold them in trust for the rightful beneficiary. Constructive Trusts are an especially effective equitable remedy to prevent the squandering of assets through self dealing, conversation, misappropriation of funds, and more.

A Constructive Trust can be implemented when a representative is appointed who has a fiduciary duty to fairly distribute assets to beneficiaries or heirs of an estate. This representative is responsible for collecting the estate’s assets, determining their value, and, if necessary, liquidating them in order to settle the estate’s debts and to more easily distribute property. The representative’s near-absolute power is what makes willful wrongdoing or mistake in distributing assets possible. Constructive Trusts can remedy these unlawful and wrongful distributions.
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In my practice as an Atlanta, Georgia probate lawyer, our firm has found that many clients involved in Georgia probate proceedings reside out of state or out of the country. Thus, they are likely are at a disadvantage concerning their particular legal situation and ability to be an intimate part in the Georgia probate proceedings in which they are involved. Please know you are not alone. We will ensure that your voice is heard and that all legal filings are made timely on your behalf. We will also ensure that you are not at a disadvantage with respect to the legal advice you receive. You will be quickly provided with documentation and information on all matters relevant to your case should this be your desire. Our lawyers and paralegals often e-mail entire files to clients via our scan and e-mail capabilities. In fact, you will likely receive letters and legal documents the same day we receive them.

The Atlanta, Georgia probate lawyers at The Libby Law Firm will ensure that you are not disadvantaged by being out-of-state. Our Georgia probate law firm clientele are located in over thirty-five US states. We also represent clients in numerous foreign countries that consist of military, contractors stationed and/or working out of the US, and citizens of foreign countries. If you are located out-of-state but have a pending matter in Georgia probate proceeding for which you require legal representation, we can assist you.

Thus, the saying: You stay at Home; We Will Take Care of It!

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As a Probate lawyer in Atlanta, Georgia, I realize that terms that are commonplace in our Georgia Probate Practice, are foreign to the layperson and even non-probate attorneys. To a seasoned attorney, Georgia Probate-Estate Administration can be relatively straightforward when the Georgia Estate Proceedings do not involve siblings or relatives who argue, objections court appointments, the sale of properties or assets, or caveats – which is a legal word for “objection.” This type of calm and smooth Georgia Estate Administration Proceeding is rarely the case. Conversely, probate is not a simple a matter to the heirs, relatives, and close persons to the decedent. Most Georgia Probate-Estate Proceedings are emotionally charged where rises to unprecedented levels. This is also true for disputes between all parties in interest to the Georgia Estate Proceedings. Moreover, the protracted nature of the Georgia Probate Proceedings can take a heavy toll in terms of the time consumed and emotional strain.

Probate Related FAQs

(1) What is the duration of the probate process?

In some cases, an Estate Administration Proceeding can be completed in a year. However, a couple of years is the norm and you should prepare to be patient and not worry about the day-to-day Estate Administration to which you are an interested party. In fact, opening the estate usually takes a minimum of 45 days. This involves, inter alia, completion and filing of papers, fixing a date for the hearing and issuing notices, letters, bonds, etc., and assumes all parties are amicable.

(2) How does one deal with creditors?

Creditors of the deceased must be issued notices after the submission of letters. In this connection, the mandatory claim period is 120 days during which the creditors may come forth with their respective claims upon the estate of the deceased.

(3) What are the expenses involved?

Probate involves what in legal parlance are termed costs and fees. Costs are expenses related to filing for opening the estate (In the Georgia, the fees and expense are in the hundreds of dollars. Moreover, the fees and expenses vary greatly from county to county. Recently, the fees have been rapidly rising and I would not even venture to guess the fees for the purposes of any future reason), issuing notices, and appraisal of assets by the court-appointed probate referee. Legal Fees are an estate expense. However, if the Georgia Estate is riddled with infighting, caveats (“objections”), hearings, and more, the legal fees, cost, and expenses can be significantly more.


(4) How does one distinguish between executors and administrators?

The distinction is based on the simple premise that the two function in two different situations – the court appoints an executor in the case of a testate death (“the deceased had a Will”) and an administrator in the case of an intestate death (“the deceased had no Will”). Executors are issued “Letters Testamentary” while administrators are issued “Letters of Administration,” both Letters outlining their court-conferred powers in respect of the estate. The term personal representative can be used to refer to both executor and administrator. Executors, administrators, and personal representatives have a Fiduciary Duty to heir and beneficiaries of the Estate. The Fiduciary Duty is one of the highest duties imposed by Georgia Law.

(5) Are there any cases in which a probate can be bypassed?


Yes, probate does not apply to assets such as insurance, retirement, and bank accounts if they name a living beneficiary. These assets are said to pass outside or probate and are Non-Probate Assets. In addition, in the case of joint assets, probates can be bypassed in case of death of the first owner (e.g. in the case of a jointly held home or bank account). In the state of Georgia, this also extends to assets forming part of a living trust. These are the general provisions and the particulars may vary depending on the laws that shall apply on a case-to-case basis. It is rare that there an estate is completely probate asset free, so all decedent’s estates should explore the whether the probate process is necessary. Even in cases where the Georgia Probate Assets total less than $10,000.00, there is a Georgia Probate Proceeding, which can be filed requesting the Probate Judge to Order “No Administration Necessary.” Therefore, there is really no Georgia Estate that can pass without touching base with the County Probate Court in some way, shape, or form.

Starting off, any executor, administrator, or personal representative undertaking to probate a Georgia Estate should consider retaining an experienced probate lawyer to assist with the Probate Proceedings. First, the choice to retain a lawyer demonstrates that you want a fair-minded unbiased person involved with the Georgia Estate Administration. This also shows the other interested parties to the estate that you welcome transparency in the Estate Proceedings and all interested parties are welcome to any information concerning the Estate Administration. Taking this action goes a long way to calming fears and suspicions of the “self-dealing personal representative all heirs and beneficiaries fear.” Realistically, it takes a huge burden off your fears of inadvertently breaching your fiduciary.
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In my Atlanta and Marietta, Georgia, law firm, I have learned one of the most important abilities a probate lawyer can have, is to be able to keep the peace! In my Atlanta Probate Law Practice, one of the most common questions I am asked is, how to stop heirs and beneficiaries from fighting with executors and administrators. Usually this question comes from the executor or administrator whose life has been turned upside down by the demands of their Fiduciary Duty. Most executors and administrators want to get through the process as efficiently and quickly as possible in order to return to their normal daily life. But there are other reasons to keep the peace when acting as an executor or administrator.

By actively limiting conflict during the proceedings, it is true that the estate will be distributed faster, but it will also be administered with more assets intact. When conflict arises, litigation, or at least mediation, is not far behind. Probate mediation and litigation can cost precious time, not to mention monetary resources. This type of legal cost can come directly out of the assets of the estate, so with more time spent feuding, less money is available to distribute.

Besides the monetary and time issues, it is important to keep the wishes of the decedent in mind. I believe that most people write wills in part to limit infighting over estate assets. By maintaining a transparent process with the heirs and beneficiaries, conflict can be minimized and the deceased’s wishes can be honored more fully. By retaining the counsel of an experienced Georgia probate lawyer, an executor or administrator can perform the required fiduciary duties and properly keep beneficiaries and heirs informed while meeting all deadlines.
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In my estate law firm practice in Atlanta, Georgia, I have seen the negative impact on many probate cases when financial instruments and valuable assets are set up to provide convenience for the primary owner. It is important to take proper care not only when setting up joint bank accounts, but also when assigning joint owners or beneficiaries to IRAs, 401(k)s, life insurance policies and real estate. Failure to correctly assign joint account holders to any asset or financial instrument under the counsel of a qualified estate attorney may result in disputes during probate proceedings. Setting up these instruments should be part of a sound estate administration plan. Likewise, if a dispute arises, you should retain an experienced Georgia probate law firm to represent you in any Georgia probate and estate litigation lawsuits concerning jointly titled assets.

Because jointly owned bank accounts, IRAs, 401(k)s, life insurance policies and real estate with a right to survivorship are considered non-probate assets, ownership of these assets is straightforward. As non-probate assets they are typically transferred directly to a joint owner or beneficiary and do not need to be distributed through the probate process when the primary owner dies. The problem arises when, in probate proceedings, heirs and beneficiaries disagree on how these assets were originally set up and what the deceased’s true intentions were, upon death, regarding the distribution of these assets.

Just as in the case of joint bank accounts, other assets can be set up where the primary and joint owner’s names are linked by the words “and” or “or.” The difference between these two designations is critical. Both account holders need to sign for all transactions when assets are set up with the “and” designation. When “or” is used, the asset can be manipulated independently by either party. Upon death, all assets will transfer to the joint holder when “or” is used and half of the assets will pass to the joint holder when “and” is used. Under Georgia probate law, when one of the joint owners dies, it is important to have the designation assigned that indicates the true intention of the relationship.

Many of these assets and financial instruments are originally set up with a joint owner or beneficiary for the sake of convenience, and it is not uncommon for heirs and beneficiaries to challenge the ownership of these assets during probate proceedings. An experienced Atlanta probate litigation law firm can represent you in fighting to acquire your inheritance as the decedent truly intended. Similarly, an experienced Atlanta probate attorney can create an estate administration plan that clearly states your true intention, so that your wishes are fulfilled and your heirs and beneficiaries receive the treatment that you desire.
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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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Atlanta, GA 30324
Telephone: (404) 445-7771

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