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 Estate Attorney: Recovering Attorney’s Fees from an Executor Who Breached Their Fiduciary Duty
In a previous blog post, I discussed reimbursement of attorney’s fees for people acting on behalf of an estate in both general code terms with O.C.G.A. § 53-7-45 and in a more specific example in the case of Estes v. Collum. In this blog post, we will discuss the reimbursement of attorney’s fees directly from a personal representative rather than from estate funds. Attorney’s fees can be recovered directly from an estate’s personal representative in cases in which that representative is acting in bad faith (for their own personal interest rather than the interest of the estate). An example of one such case is In re Estate of Zeigler. In Zeigler, the executor of an estate did not want a house belonging to the estate to be transferred to the beneficiary who rightfully should have received it according to the deceased’s will. Therefore, the executrix made arrangements for the house to be sold to her friend, giving her friend a check in the amount of $65,000 for the purchase price. The purchase price was considerably lower than the house’s market value of $88,000. The buyer then paid the $65,000 back to the executor, which she deposited into her personal bank… [Read More]
Atlanta Probate Lawyer: Recovering Attorney’s Fees for Actions Taken on Behalf of an Estate
For many people, the thought of the fees associated with hiring an attorney can be a stressor. However, when deciding to pursue legal action in an estate, potential clients should be aware that there is legal precedent for reimbursement of attorney’s fees from the estate’s funds. These fees can be legal fees for the normal course of events in the distribution of an estate or even legal fees as a result of contesting/removing a current personal representative. The Official Code of Georgia Annotated (OCGA) provides in §53-7-45 that “personal representatives [of an estate] are authorized to compromise, adjust, arbitrate, assign, sue or defend, abandon, or otherwise deal with or settle debts or claims in favor of or against the estate.” If the personal representative does not want to pursue a matter, they can assign the matter to a creditor or heir/beneficiary who can then pursue it on their behalf. If that person succeeds in her pursuit and thereby brings funds into the estate her attorney’s fees and expenses may be reimbursed from the estate. The case Estes v. Collum provides an example of a different kind of situation which may warrant an award of attorney’s fees. In Estes, the estate administrator was wrongfully holding property… [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: Choosing the Executor of Your Estate Wisely
As an Atlanta probate attorney, I have witnessed the consequences of a poorly-chosen executor on the administration of an estate. Choosing who will be the executor of your estate is a big decision, and your executor shouldn’t be chosen based on who is your closest family member or friend but on who is qualified for the job and will be able to best administer your estate. An executor of an estate has a serious fiduciary obligation and should be chosen wisely. Executors are responsible for the timely and competent administration of an estate. Their duties include probating the will in the court which holds jurisdiction, accounting for all of the money held in the estate, paying estate taxes, and managing costs associated with funerals and other matters. Therefore, your pick for executor needs to be responsible, detail-oriented, and have a proven ability to manage money. The duties of an executor are time-consuming. The administration of an estate can sometimes take years to complete. Therefore, when choosing your executor, it’s important to choose a person who not only will be able to shoulder these responsibilities, but who also will likely live long enough to complete their responsibilities. As this Forbes article states,… [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 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 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]
