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]
Atlanta Probate Lawyer on Joint Accounts: Use Them with Spouses, Not with Children
In my Atlanta estate law practice, I work with clients on a regular basis regarding accounts owned by a parent who added another person (most often a child) prior to the parent’s death (i.e., joint accounts). The problem that arises is that, upon the death of the parent, Georgia statutory law presumes the parent wanted the child who was added to receive all funds in the account, but other children of the parent typically do not believe such an outcome was intended by the parent. Therefore, the other children seek to pull those funds into the parent’s estate where it will be divided according to the parent’s will or Georgia intestacy laws, in which case the other children are likely to receive some portion of the funds. Joint accounts between parents and children are problematic because of the several ways the parent’s actions can be interpreted. Did the parent really intend the child to receive all of the funds in the account when the parent died? Maybe. Joint accounts can be useful estate planning tools, but if the parent does not tell his other children about the account and makes no mention of the account in his will or some… [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]
