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Georgia Probate Attorney: Estate Planning to Avoid Potential Probate Disputes

As an Atlanta estate planning and probate attorney, I have had many clients who found themselves tangled up in familial discord because of the lack of proper estate planning done by their parents or other family members. The probate process can be difficult and stressful and can often result in feuds between family members if an estate is complicated or if the estate was not planned well. If you would like to know what happens in the probate process for an intestate estate (the estate of a person who died without a will), you can read my previous blog post on the matter. I discuss in this blog some ways to plan your estate and write your will so that your family can avoid lengthy probate proceedings as much as possible – and hopefully avoid conflict. One way to avoid ambiguity in your estate plan that may lead to familial conflict is to designate bank accounts which you intend to give to a specific family member as “payable on death” (POD) or “transferrable upon death” (TOD). A POD/TOD bank account pays out upon your death only to the specific person named as beneficiary on the account. This type of bank… [Read More]

Atlanta Probate Lawyer: The Challenges of Heirs Property

As an Atlanta probate attorney, I have a lot of experience with navigating issues which arise from a type of property called “heirs property.” Heirs property is “home or land that has been passed from generation to generation in such a way that multiple people own the same piece of property” (Georgia Heirs Property Law Center). This can happen either because a deceased person left the property to multiple people in their will, or because the deceased person died intestate, causing the property to be passed automatically to their heirs-at-law. The multiple owners of heirs property are “tenants in common,” which means they all have a share of rights to the use, possession, interest, rent, etc. of the property (Georgia Bar Journal). Heirs property is an issue which presents a plethora of challenges for the owners of such a property. One common and significant problem inherent with heirs property is “clouded title,” meaning that because of the undocumented nature of the succession of heirs property, it is often not clear on the property’s title who exactly owns the property and what rights they have with the property (Georgia Bar Journal). Therefore, it is typically necessary for all co-tenants of a… [Read More]

Atlanta Probate Attorney: The Trouble with Joint Accounts

In my Georgia probate practice, I have had several clients who were left in an uncomfortable predicament during probate due to the deceased’s use of a type of bank account called a joint account. Joint accounts are accounts with multiple owners, usually two. The money in the account is considered the property of the person who contributed the money to the account. However, each joint owner has unfettered access to the funds in the account, and does not need the knowledge or consent of the other owner to conduct transactions on the account. Upon the death of one joint owner, all the funds in the account become the property of the other joint owner. The funds do not pass through probate, meaning they are not considered part of the decedent’s estate to be distributed among the beneficiaries regardless of the instructions left in the deceased’s will, which is where the trouble with joint accounts typically begins. Other than among spouses, joint accounts are terrible planning tools. It is natural that, upon a person’s death, he or she will want to leave control and ownership of an account to a spouse, and you rarely see litigation against a spouse that was… [Read More]

Atlanta Probate Lawyer: S-Town as an Example of the Importance of Making a Will

As an Atlanta probate lawyer, I am very familiar with the consequences that can follow when a person dies intestate (i.e., without a will). The process of divvying up assets without a will to guide the process can become long, messy, and painful. A culturally relevant example of the unfortunate consequences of not preparing a will is the very popular podcast S-Town. S-Town follows the story of John B. McLemore, a resident of a small town in Alabama who owned acres upon acres of land, cared for his mother with dementia, and was rumored to have a large sum of money to his name in the form of gold bars. Following the death of McLemore by suicide, and the realization that McLemore had no will, his assets (and what was to become of his mother) were up in the air. During his life, he had verbally promised gold, money, property, etc. to friends. But without a will, these promises were not legally binding. S-Town explores the difficulties experienced by both the distant family members and McLemore’s friends in probating the estate without a will to guide the court. Although not every estate’s tale is quite so dramatic, it is important to have a… [Read More]

Georgia Estate Planning Attorney: Wills on the Cheap Cost More in the End

I’ve been an Atlanta estate planning and probate attorney for several years and am often entertained and sometimes shocked by some attempts people make to prepare their own Last Will and Testament either on their own or through an automated service like LegalZoom.com.  I used to support companies like LegalZoom because I thought the documents they produced were foolproof, but I changed my mind after seeing what was supposed to be an easy process mangled either through the computer application or upon the execution of of the documents.  I certainly sympathize with the customer concerned with costs and don’t blame LegalZoom for grabbing hold of a market niche, but too often the result is far from what the customer intended.  (I’ve represented a lot of individuals in the past in business disputes resulting from the same problem: business partners too cheap to spend a few thousand dollars on a consult and some documents to protect their business and themselves from unknown legal risks.  As a result, the partners often end up spending tens of thousands in litigation.) I’ve seen poorly drafted Wills make bequests to persons whom the testators had no intention of leaving property (at the cost of those… [Read More]

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]

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