As an Atlanta guardianship attorney, I speak with a lot of people who are confused by Georgia’s guardianship and conservatorship laws and the difference in the roles between a guardian and a conservator. Before distinguishing those roles, it will be helpful to explain why a guardianship or conservatorship may be needed. Generally, there are three circumstances in which a person needs a guardian and/or conservator: (1) a minor is no longer under the care of either of his or her parents (a/k/a natural guardians), (2) a minor is due a payment from a financial institution (e.g., life insurance proceeds, retirement plan beneficiary distribution, etc.) whether or not under the care of his or her parents, and (3) an adult becomes incapacitated to the extent that he or she cannot perform routine daily functions (e.g., cooking, bathing, paying bills, and balancing a check book) without help. In any of those circumstances, an interested party can petition the probate court of the county in which the minor or incapacitated adult (referred to as the “ward”) lives for the appointment of a guardian and/or conservator. A guardian is a person appointed to look after the “person” of the ward. In other words, a… [Read More]
Georgia Guardianship Attorney: Plan for Dementia-Related Incapacity
As part of my Atlanta guardianship law practice, I have represented several clients in guardianship actions seeking to be appointed guardians of a parent, spouse, or other relative with a dementia-related disease. In most instances, the proposed ward had either been diagnosed with Alzheimer’s disease or exhibited many symptoms of the disease. I am reminded with each client how important it is for everyone to have an estate plan in place that includes, at a minimum, a Last Will and Testament, financial power of attorney, and Georgia Advanced Directive for Healthcare. Having these three documents may save you and your family not only from problems that might arise after you die but also from problems that arise due to your incapacitation, whether by a dementia-related disease or otherwise. But for this post I focus on the growing prevalence of dementia-related diseases, and especially Alzheimer’s disease, because it is these types of diseases people least expect but are, year after year, more likely to have as they get older. Over the last decade, the prevalence of dementia-related diseases has grown among the elderly, and Alzheimer’s disease is leading the pack. The Alzheimer’s Association provides a remarkable and worrying fact sheet at… [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]
Kasey Libby on Channel 2 Action News
Attorney Kasey Libby recently spoke with Ross Cavitt of Channel 2 Action News regarding a multi-million dollar fraud committed against his client in Cobb County by her power of attorney. Click on Post Title above to see video.
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 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]
