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 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]
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]
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 Estate Planning Attorney: Planning for Your Healthcare in Advance
As an Atlanta estate planning attorney, I have years of experience with assisting my clients in creating a plan for their health through documents like advance directives. Advance directives can give someone a say in their healthcare in the event that an accident or illness leaves them unable to communicate their wishes. Typical advance directives contain information regarding an individual’s health care agent and his or her preferences for matters including organ donation and end-of-life decisions. However, what should an advance directive look like if the individual’s illness is something long-term, something that progresses? The actions a person wants taken for their health in a later stage in their illness may not be the same actions they want taken in the early stages. For example, as this New York Times article states, people with dementia, which is a terminal disease, may still thrive and be happy in their lives despite issues with memory or daily activities. However, “the point at which dementia patients can no longer direct their own care isn’t predictable or obvious.” In such a case, an advance directive which does not take into consideration the progressing nature of the disease may not be the best fit for… [Read More]
