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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 Lawyer: Georgia’s New Uniform Power of Attorney Act

Recently, the Uniform Power of Attorney Act, or UPOAA, passed in Georgia. This act, which becomes effective beginning July 1, 2017, amends the previous law regarding powers of attorney (POAs). The passage of UPOAA in Georgia is a significant step toward protecting elderly or disabled people because it clears up confusing aspects of the previous statutory scheme governing POAs and provides for additional safeguards against elder abuse and financial exploitation by their agents. The Georgia Chapter of the Alzheimer’s Association called uniform power of attorney laws “crucial to people with an Alzheimer’s diagnosis.” UPOAA not only adds protections for principals- it provides common sense protections for agents and third parties, as well. POAs allow an agent to enter important financial transactions on behalf of a principal, such as buying and selling real estate, opening and closing accounts and paying bills. UPOAA adds protections to prevent an agent from abusing such powers. Prior to UPOAA passage, agents were subject to less harsh penalties and often were never held responsible for their misuse of their power. Sometimes, agents would be charged criminally, and may have been subject to a criminal restitution order, but prosecutors rarely pursued such cases because the amounts taken… [Read More]

Atlanta Probate Lawyer: S-Town as an Example of the Importance of Making a Will

As an Atlanta probate lawyer, I am very familiar with the consequences that can follow when a person dies intestate (i.e., without a will). The process of divvying up assets without a will to guide the process can become long, messy, and painful. A culturally relevant example of the unfortunate consequences of not preparing a will is the very popular podcast S-Town. S-Town follows the story of John B. McLemore, a resident of a small town in Alabama who owned acres upon acres of land, cared for his mother with dementia, and was rumored to have a large sum of money to his name in the form of gold bars. Following the death of McLemore by suicide, and the realization that McLemore had no will, his assets (and what was to become of his mother) were up in the air. During his life, he had verbally promised gold, money, property, etc. to friends. But without a will, these promises were not legally binding. S-Town explores the difficulties experienced by both the distant family members and McLemore’s friends in probating the estate without a will to guide the court. Although not every estate’s tale is quite so dramatic, it is important to have a… [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: 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 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 Probate: What Does That Mean?

In Georgia, probate means the proving of a Last Will and Testament by a court of law.  When a person who has made a Will (a.k.a. testator) dies as a resident of a county in Georgia, his Will must be presented to the court and proved to be valid.  Once a Will is “admitted to probate,” or proved, the probate process is completed.  The next steps are the appointment of the executor nominated in the Will and then administration of the estate of the testator according to the terms of the Will.  The term probate no longer has any practical relevance once the Will is proved. A probate court in Georgia handles a variety of matters in addition to the probate of Wills.  It oversees the administration of both testate and intestate estates, the appointment and removal of personal representatives of estates (a.k.a. executors and administrators), claims made against personal representatives, guardianship and conservatorship matters, marriage licenses and wedding ceremonies, and weapons carry licenses. If you are having any problems with an estate or other matter before a probate court in Georgia, email me or call me at 404-467-8611 to find out how we can help you.  Our firm is located… [Read More]

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