Many people are unaware that, in order for a will to be valid, it must have been signed by the testator in the presence of two witnesses. However, even more people are unaware that the witnesses must also sign the will in the presence of the testator. According to O.C.G.A. § 53-4-20(b), a “will shall be attested and subscribed in the presence of the testator by two or more competent witnesses.” Generally, should evidence be provided that a testator did not personally see the witnesses sign his or her will, the probate court must refuse to probate the will. However, there is a precedent called the “line-of-vision” test. This test allows that the testator doesn’t actually have to watch the witnesses sign the will so long as the testator could have watched the witnesses sign if desired without moving or changing his or her position. One example of a case in which the line-of-vision test was utilized is Chester et al. v. Smith. In this case, the deceased, Sara Elizabeth Campbell, signed her will in a car in the parking lot of bank before a bank employee. The bank employee then took the will inside the bank and asked two… [Read More]
Georgia Probate Lawyer: Can a Family Member Unduly Influence Someone in the Making of Their Will?
In a previous blog post, I discussed the case Bailey v. Edmundson, which provided an example of what a presumption of undue influence regarding the making of a will looks like. In Bailey v. Edmundson, it was somewhat easy to conclude that the deceased had been unduly influenced due to the overwhelming evidence that his caregivers had actively encouraged him to make his new will against his stated intent (even the day after executing the new will) to leave his property to his daughter. However, in cases where the facts are less black and white (like in a situation where the person who stands to benefit from a contested will is a family member or spouse), what can a court look to in order to reach a conclusion that a testator was unduly influenced? There is no strict criteria to prove undue influence; it can be supported by a wide variety of evidence which is almost always circumstantial, so there is no one set “checklist” of what needs to happen in order for a will to be found to have been the result of undue influence. For example, in cases that involve the possible undue influence by a spouse, the court… [Read More]
Georgia Probate Attorney: Conflicts of Interest That Can Disqualify an Executor
It is important that the executor of an estate is chosen carefully and is a person who can unbiasedly act in the best interests of the estate. So what happens when the named executor in a will presents a conflict of interest? O.C.G.A. § 53-7-55 allows the court the discretion to deny issuance of or to revoke letters testamentary when good cause, like a conflict of interest, is shown. For examples of conflicts of interest, we will look to the cases of In re: Estate of Moriarty and In re: Estate of Farkas. In In re: Estate of Moriarty, Catherine Moriarty petitioned to be executor of the estate of her husband, Edward Moriarty. Catherine was named executor in Edward’s will. However, Edward’s daughter, Maureen Weare, filed a caveat and petitioned to have Moriarty disqualified as executor, because Catherine had a conflict of interest with her representation of the estate. Catherine was not a beneficiary under the terms of the will; however, she did maintain a joint account with Edward which she claimed was payable to her by right of survivorship (i.e. not a part of the estate). After the Court disqualified her as executor, Catherine appealed the decision, stating that… [Read More]
Georgia Probate Lawyer: How Can I Know if an Executor Has Breached Their Fiduciary Duty?
As an Atlanta probate attorney, I have assisted many clients with performing their duty as executor of an estate. The job of being executor can be difficult because fiduciary duty is not easily defined or understood, especially to a layperson. An executor’s position is defined in the law as being “of the highest trust and confidence to heirs at law, and [an executor] is required to act in entire good faith.” However, this is not a very specific description, and it’s difficult to know what constitutes “the highest trust.” In order to better understand what a breach of fiduciary duty can be, we can look to the case Greenway v. Hamilton. Stanley Greenway was appointed the executor of his mother’s estate following her death. Greenway’s niece, Dina Hamilton, filed a petition for accounting following Greenway’s distribution of the estate. Greenway provided an accounting, to which Hamilton had objections. The probate court held a hearing on the matter and found that Greenway had breached his fiduciary duty, a position which was upheld by the Supreme Court of Georgia on appeal. Here are specific examples of how Greenway breached his duty: Greenway sold estate property to his wife for significantly less than… [Read More]
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: 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]
Atlanta Probate Attorney: Guess Who Gets Assets When There Is No Will
As an Atlanta probate lawyer, I am always representing clients who must administer an estate without a Will. In Georgia, when a person dies without a Will (i.e., dies intestate), the state legislature has decided how her estate will be divided. The legislature passed a statute that identifies the heirs-at-law of an intestate decedent and the amount each heir-at-law is entitled to. The following persons are entitled to a share of the intestate decedent’s estate in the following shares: If the decedent was married without children: entire estate to spouse. If the decedent was married with children: estate divided evenly among spouse and children*, except that spouse receives no less than 1/3. To illustrate, if the decedent was married and had one child, the spouse and child each would receive 1/2 of the estate, but if the decedent was married and had three children, the spouse would receive 1/3 of the estate, and the three children would split the remaining 2/3 of the estate. If the decedent had children but was not married (was either single, divorced, or widowed): estate divided equally among children. If the decedent was not married and had no children: estate divided among living parents. If… [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]
