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Atlanta Probate Attorney: The Trouble with Joint Accounts

In my Georgia probate practice, I have had several clients who were left in an uncomfortable predicament during probate due to the deceased’s use of a type of bank account called a joint account. Joint accounts are accounts with multiple owners, usually two. The money in the account is considered the property of the person who contributed the money to the account. However, each joint owner has unfettered access to the funds in the account, and does not need the knowledge or consent of the other owner to conduct transactions on the account. Upon the death of one joint owner, all the funds in the account become the property of the other joint owner. The funds do not pass through probate, meaning they are not considered part of the decedent’s estate to be distributed among the beneficiaries regardless of the instructions left in the deceased’s will, which is where the trouble with joint accounts typically begins. Other than among spouses, joint accounts are terrible planning tools. It is natural that, upon a person’s death, he or she will want to leave control and ownership of an account to a spouse, and you rarely see litigation against a spouse that was… [Read More]

Atlanta Probate Lawyer: Will Your Assets be Distributed to Your Intended Beneficiary?

As an Atlanta probate attorney, I have had many clients who were left confused and frustrated by the probate process because of the deceased’s misunderstanding about which of their assets would pass through probate and which were bound to other routes of distribution. This can be particularly confusing in the case of bank accounts, life insurance accounts and retirement accounts. There are many different kinds of accounts, with many different kinds of beneficiary arrangements, some of which supersede the arrangements laid out in a will. It is important to understand these different beneficiary arrangements when making your estate plan so that your assets can be distributed as intended. Some fiduciary institutions and insurance companies require a beneficiary designation. This specifies who will receive assets like retirement accounts or life insurance proceeds, which are not bound by wills or trusts. Some accounts will readily allow you to designate any beneficiary you choose, while other accounts require a few more hoops be jumped through if you would like to designate someone other than your spouse as beneficiary. Be sure to update your beneficiary information if anything changes in your personal life (i.e., if you get divorced or have children). Otherwise, your intended… [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: 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]

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]

Georgia Estate Attorney on Home with Mortgage: Sell It or Scrap it?

As an Atlanta probate lawyer, I’ve dealt with dozens of Georgia estates that include a home with a mortgage on it. How to handle the home and mortgage in Georgia can be difficult to determine, especially if the mortgage loan balance is close to the value of the home. The following is a basic guide to follow, though I urge any person facing this question to contact a Georgia estate attorney before following through on any decisions as each situation has specific facts that may not fit neatly into any of the scenarios below. Also, the guide below only takes into consideration financial considerations of the estate and heirs, not any sentimental attachments that an heir may to a home, which should be taken into consideration when determining how to proceed. If a Georgia estate holds a home in good condition with a mortgage, and the mortgage loan is significantly less than the fair market value (“FMV”) of the home (by at least 10%), it usually is best to continue to make payments on the mortgage and plan on either distributing the home to the heirs or selling the home directly from the estate as quickly as possible to relieve… [Read More]

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