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]
Atlanta Probate Attorney: Undue Influence in the Making of a Will
As an Atlanta probate attorney, I have assisted many clients regarding the estate of a loved one who was likely unduly influenced to create a will that did not reflect their true intentions. Undue influence is when someone uses their relationship with a testator (creator of a will) in order to convince them to write their will in such a way that it favors the influencer. A claim of undue influence can be supported by a variety of evidence, including “a confidential relation (relationship in which one party exerts power or “a controlling influence” over the other) between the parties, the [un]reasonableness of the disposition of the testator’s estate, old age, or disease affecting the strength of the mind.” The case Bailey v. Edmundson provides us with a concrete example of undue influence. After her father, Raymond Cudworth, passed away, Heather Bailey filed a will for probate which named her executrix and primary beneficiary. However, his caregivers, a Michael Edmundson among them, filed a different will for probate which they claim was executed in 2004, after the will Bailey filed. The will filed by Edmundson left bequests to Edmundson and the other caregivers and significantly reduced the amount of estate… [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 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]
