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Georgia Probate Attorney: Understanding Probate vs. Administration

In my experience as a Georgia probate attorney, I’ve noticed many people are confused by the terms “probate” and “administration” because they often are used interchangeably, even by legal professionals, but their meanings are different.  The reason for the confusion likely is caused by the two most common methods for opening an estate: (1) a petition to probate a Will and (2) a petition for letters of administration.  Both petitions result in the appointment of a person to manage an estate, but they are very different in nature. Probate is the process by which a Last Will and Testament is proved to the probate court.  When a deceased person leaves a Will, an interested party usually will file a petition to probate the Will in the probate court in the county where the deceased resided at the time of death.  Typically, the person nominated as executor in the Will does this. The petition to probate the Will is actually a request made to the court to declare the Will valid.  Before the court will do so, it will notify all heirs-at-law of the deceased that the petition has been filed so that the heirs-at-law have an opportunity to review and… [Read More]

Georgia Probate Attorney: Think Before You Sign the Acknowledgment of Service and Assent to Probate Instanter

I’ve been practicing as a Georgia probate lawyer for several years, so I get a lot of the same questions on a regular basis.  One question callers often ask is whether they should sign a petition that was sent to them by someone trying to probate a Will.  The question used to throw me for a loop.  “Only the person trying to probate the Will should sign the petition,” I’d say.  “Not a beneficiary.”  But as my experience has grown, I’ve learned to know exactly what the caller means.  She is referring to the Acknowledgment of Service and Assent to Probate Instanter form. When a deceased person leaves a Last Will and Testament, an interested party usually will file a petition to probate the Will in the probate court in the county where the deceased resided at the time of death.  Typically, the person nominated as executor in the Will does this.  Often, the petitioner will provide a copy of the petition along with the Will to the heirs-at-law of the deceased and ask them to sign a form entitled Acknowledgment of Service and Assent to Probate Instanter.  If all heirs-at-law sign the form, and there are no other issues… [Read More]

Georgia Administrators and Annual Returns – What’s in a Waiver? Part II

A Georgia estate attorney naturally is asked a lot of questions about the obligations of personal representatives.  In my previous blog post, I addressed the personal representative’s obligation to file an inventory and annual returns with the probate court, the ability of the heirs or a Will to waive those obligations, and the confusion created by the applicable Georgia statutes.  In this part, I explain that, despite waivers in a Will or by the heirs, the personal representative is almost always obligated to report to the heirs at least annually. As I wrote in my previous post, O.C.G.A. § 53-7-68 and 53-7-69 provide for a waiver of the personal representative’s requirement to provide annual returns to either the heirs or the court, or both.  I also noted there that similar statutes apply to inventories but may actually waive the inventory obligation entirely.  Therefore, it is possible for a personal representative to avoid the obligation of providing any information to the heirs.  But as a practical matter, I rarely see a Will waive an executor’s obligation to report to the heirs, and I never see heirs waive the same.  The language of a waiver in a Will is almost always restricted… [Read More]

Georgia Administrators and Annual Returns – What’s in a Waiver? Part I

As an Atlanta estate lawyer, I get a lot of calls from heirs complaining that the personal representative (a.k.a. executor or administrator) refuses to disclose any information to them. Usually, the caller is unaware that the law in Georgia is very lenient on executors and administrators with respect to their duty to report.  By default an executor and administrator is required to file an inventory with the probate court within 6 months of her appointment and an annual return not later than 60 days after the first anniversary of the appointment, and then annually thereafter until the estate is closed. It’s difficult enough for an heir to have to wait an entire year to receive a report on an estate.  Still, each individual heir can waive his right to receive a copy of the inventory and return, and all of the heirs can consent unanimously to the waiver of the personal representative’s obligation to file an inventory and returns with the court at any time.  It’s surprising to me how often heirs do this.  Also, a Will can relieve the executor from the inventory and return filing obligations regardless of what the heirs wish to happen. When this happens, the… [Read More]

Georgia Estate Planning: Everybody Needs a Will

I’ve been an Atlanta estate planning lawyer for several years, and on a regular basis I get new calls from people seeking help with an estate of a loved one who died intestate (i.e., without a Will).  Those calls usually begin with the caller complaining that the decedent made no Will.  Having represented dozens of clients dealing with intestate estates, I am immediately sympathetic. I can still help the caller but know from the start the process will be more complicated than it needed to be. Rocket Lawyer, an online legal service provider, found in a recent estate planning survey that 61% of Americans do not have a Last Will and Testament. Even worse, that number climbs to 70% for people with children under 18 years old.  Failing to make a Will, especially for people in the latter category, will subject your estate to unnecessary difficulty and, in some cases, utter calamity through family infighting, incompetent estate administration, and litigation. People have myriad reasons to not make a Will: I’m young. I don’t have kids. I don’t own enough stuff. I’m not sick. I don’t want to think about death. The law will take care of it. All of the… [Read More]

Georgia Estate Attorney on Home with Mortgage: Sell It or Scrap it?

As an Atlanta probate lawyer, I’ve dealt with dozens of Georgia estates that include a home with a mortgage on it. How to handle the home and mortgage in Georgia can be difficult to determine, especially if the mortgage loan balance is close to the value of the home. The following is a basic guide to follow, though I urge any person facing this question to contact a Georgia estate attorney before following through on any decisions as each situation has specific facts that may not fit neatly into any of the scenarios below. Also, the guide below only takes into consideration financial considerations of the estate and heirs, not any sentimental attachments that an heir may to a home, which should be taken into consideration when determining how to proceed. If a Georgia estate holds a home in good condition with a mortgage, and the mortgage loan is significantly less than the fair market value (“FMV”) of the home (by at least 10%), it usually is best to continue to make payments on the mortgage and plan on either distributing the home to the heirs or selling the home directly from the estate as quickly as possible to relieve… [Read More]

Georgia Probate: What Does That Mean?

In Georgia, probate means the proving of a Last Will and Testament by a court of law.  When a person who has made a Will (a.k.a. testator) dies as a resident of a county in Georgia, his Will must be presented to the court and proved to be valid.  Once a Will is “admitted to probate,” or proved, the probate process is completed.  The next steps are the appointment of the executor nominated in the Will and then administration of the estate of the testator according to the terms of the Will.  The term probate no longer has any practical relevance once the Will is proved. A probate court in Georgia handles a variety of matters in addition to the probate of Wills.  It oversees the administration of both testate and intestate estates, the appointment and removal of personal representatives of estates (a.k.a. executors and administrators), claims made against personal representatives, guardianship and conservatorship matters, marriage licenses and wedding ceremonies, and weapons carry licenses. If you are having any problems with an estate or other matter before a probate court in Georgia, email me or call me at 404-467-8611 to find out how we can help you.  Our firm is located… [Read More]

Georgia Will Contest: Is It Worth It?

I get a lot of calls from people in Georgia, all over the United States, and sometimes abroad interested in contesting a will. Invariably, the first question they ask is whether they have a case? For an in-depth answer, please review the Will Contests page of this website. You may also find will contest article published at AARP.org helpful, not just because it provides an overview of when a will contest may be appropriate but also because it poses an important question: is the cost of a will contest worthwhile? There are several factors to consider when determining the value of a will contest? Most importantly, the case must have a good chance of success. This usually means a set of facts known from the outset that make it more likely than not that the will is invalid. However, the strength of a will contest must be analyzed from a legal perspective, not a moral or ethical perspective. I get plenty of calls from people who desire to contest a will because they do not like the contents of the will but have no legal basis to overturn the will. I also get a lot of calls from people who claim… [Read More]

Georgia Estate Dispute: Avoid One with Communication

What should you do when there is trouble brewing in your family regarding an estate matter in Georgia? Should you stay quiet and hope the dispute never erupts? Should you head off a dispute by telling everyone else how things ought to be done.  The New York Times recently published a Q&A with Sheila Heen (“Negotiating Conflicts, Part 5: A Tug of Wills“). Ms. Heen is a negotiations and communications expert and faculty member at Harvard Law School, that emphasizes one major theme: communicate your concerns before it is too late. Estates  are uncomfortable topics. To most, asking a parent about his estate probably seems cynical and self-serving. Even close siblings often have a difficult time discussing with each other what to do about their parents’ estates (who should do what, who should get what, etc.). However, failing to address valid concerns sooner may cost the family time and money fighting over those concerns later. There are a variety of smart, healthy ways to break the ice on such a difficult topic. If you are concerned about how things will play out in your family, don’t be afraid to let someone know. If you are too uncomfortable to say something… [Read More]

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