On April 9, 2020, Georgia Governor Brian Kemp issued an executive order allowing all legal documents to be witnessed and notarized remotely in response to the COVID-19 crisis. The order was welcomed by the legal community since the state-wide shelter-in-place order and state of emergency, as well as the general cooperation of Georgia’s public in social distancing, has temporarily halted in-person meetings with clients. The most important thing Georgians can do right now is limit their physical interactions with their community to help fight the spread of the coronavirus, but that does not mean Georgians cannot take important steps to put their legal affairs in order. One benefit of the order is that estate planning may be accomplished virtually. Rather than having to meet with an attorney at his or her office, Georgians can now work with an attorney by phone, email and audio-video conference to prepare and execute wills, powers of attorney and healthcare directives from the safety of their homes. This is a unique opportunity for Georgians. Most people understand the need to prepare an estate plan, but many often put off estate planning for a variety of understandable reasons. We all are very busy facing immediate and… [Read More]
Georgia Estate Planning News: You can now make your Will without leaving your home!
Atlanta Probate Attorney: The Role of Line-of-Vision Tests in Probating a Will
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]
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 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]
Atlanta Estate Planning Lawyer: Creating a Plan for Digital Assets
As a Georgia estate planning attorney, I have aided many clients in creating an estate plan that will ensure their assets are distributed in the way they wish. Clients often have an idea of what they want done with assets like real property and bank accounts, but don’t consider their digital assets. In today’s technological world, it’s important to consider the assets you have on your computer and on the internet in your estate plan. Digital assets can be any of a wide variety of things- your social media passwords, for instance. Right now, it might not seem important to consider if someone will be able to log in to your Facebook account after you pass away, but think about all of the family photos you’ve posted or saved on Facebook that could be lost if no one can access your account. Digital assets could also be anything from a blog to research documents to your Venmo or PayPal account. Many online services and websites have features you can update in order to provide for your account following your death. Google will allow you to designate a trusted contact who will be provided with the opportunity to download your account… [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]
Atlanta Estate Planning Attorney: Making a Plan for a Financial Emergency
Estate planning can be overwhelming. There are a number of factors to consider when planning the transfer of everything you own at a time when you no longer are able to participate in the transfer. However, as an Atlanta estate planning attorney, I know that not having a proper estate plan in place can cause many problems after your death. It’s important that you prepare the proper documents, and that your family knows where to find them and what information is contained in them so that things can go as smoothly as possible in the event of an accident or illness. This idea can even be expanded beyond just estate planning documents to include documents which can help you or your family in the event of any kind of financial emergency. This “financial emergency kit” should contain not only your estate planning documents but also other important documents which may be needed in case of emergency. Some items to include in your financial emergency kit might be considered “no-brainers.” For example, the kit should include your house, life, disability and auto insurance documents. In the event of a house fire, family death, or incapacitating automobile accident, you will need these… [Read More]
