Georgia Recent Legal Answers from Lawyers

The answer to your question is Maybe. A lot depends on how the trust is written, who created it, where the assets it holds come from, what the lawsuit relates to, and what state laws apply.   For example, in Georgia, a person cannot create a trust for her own benefit, move her own assets into it, and then claim that the assets are not subject to her creditors and judgements against her. However, a person's parents, for example, could create a trust for her benefit, move their own assets into it, and use a provision generally called a "spendthrift clause" to protect the trust's assets against most of the beneficiary's creditors and many kinds of judgments. But that protection is not perfect, the degree of protection differs from state to state and both the law of the state where the trust was created and held and the state in which the beneficiary lives can affect the protection.   Again using Georgia as an example: If the beneficiary of a trust created by the beneficiary's parents with the parents' own assets and including a spendthrift clause starts a business, runs up personal credit card debt associated with that new business, and then loses the business, resulting in a lot of credit card debt that she can't pay easily, the credit card lenders likely will not be able to touch the assets in the trust created by the beneficiary's parents. Similarly, if the beneficiary gets divorced, her ex-spouse likely can't touch the trust assets and they won't get divided up. However, Georgia does not protect against alimony award or child support award claims, so if the beneficiary fails to pay child support or alimony, the children or the ex-spouse who are owed may be able to get assets out of the trust to pay the amounts owed them. And, Georgia does not protect against tort judgment creditors, so if the beneficiary gets drunk, drives home, hits and kills someone else, and gets sued, the person suing her may be able to collect an unpaid judgment from the trust's assets to some extent.   If you are the beneficiary of a trust, or if you want to set up a trust for someone else, I strongly recommend getting an experienced estate planning attorney to help you. The attorney can help make sure that any trust is as protective as possible.  ... Read More

If your grandfather's estate is still open and the house has not yet been transferred from the estate to your parents, then the Executor needs to have your sister and her husband evicted, and then consult a real estate attorney for help getting the lien cleared off of the property title. If the lien is the result of a personal liability that either your sister or her husband had, it should not have been placed against a property that did not belong to them. However, they may have forged paperwork showing that they did own the property, or otherwise lied to the lienholder, and that means that the title to the property will need to be cleared. If the property had already been transferred to your parents from your grandfather's estate, then your parents will be the ones who need to take the next steps. But start by getting the sister and her husband evicted as soon as possible. Either way, consult a real estate attorney for help.  ... Read More

Please accept my condolences on the loss of your father.   As for your question, your father's girlfriend was entitled to take her own possesions out of their home, although you are correct in that she was not supposed to take anything that was not hers. One problem that comes up, however, with personal property items like furniture, jewelry, clothing, electronics, and other household items is proving who something belongs to. In general, in Georgia, if an item was customarily used only by one person, then it's likely fair to assume that it belongs to that person, and if a person paid for all of a given item and also used it, then it's usually assumed that the person was the owner of that item unless there is some good reason to think that he intended it to be a gift to another person. But it's common for there to be disputes over who actually owns items like this, and there aren't easy ways to provie title for assets that don't have title documents, deeds, or accounts associated with them.   It is highly unlikely that you'll be able to have your father's girlfriend arrested or prosecuted for taking any of his personal property items. Even if you could prove that an item actually did belong to your father (which is difficult or impossible in many cases), the police and the criminal courts generally do not want to get involved in this kind of dispute. However, the Executor of the estate may be able to petition the probate court to have her return certain items, and the court may be able to order her to do so. You might then be able to get a sheriff to enforce the judgment if she is unwillling to turn over the property voluntarily. Please note, however: all of this costs money. Unless she took something of great financial value, or unless you are willing to spend money to recover items of great sentimental value, the overall best course of action may be to take less extreme measures, if any, to try to get the items back. You could start by having the Executor's attorney send a demand letter to her (or to her attorney, if she has hired an attorney regarding the estate). If you can list specific items that you want returned instead of just stating that you want your dad's property back, it may help. The attorney can also help the Executor figure out whether it's really worth taking additional steps to pursue the items if the demand letter is not successful.   Best wishes to you.  ... Read More

I am sorry to hear of your dad's condition and of the possible manipulation by your stepmother.   As for your question, however: you can't prevent your father from changing his Will, even if you think your stepmother is effectively forcing him to follow her wishes rather than his own. What you MAY be able to do includes the following options:   1. If you think he is truly incompetent and that your stepmother is committing physical, emotional, and/or financial abuse with regard to him or neglecting his welfare, then you (or someone else) may be able to seek appointment as his guardian and conservator while he is still living. If a court agrees that he is incapacitated and in need of a guardian or conservator, then the appointment of that person can help make sure that he is being care for appropriately and that his assets are being used for his benefit and not wasted, stolen, or used inappropriately.   2. If he dies and you do not believe that any Will that is offered for probate for his estate is not a valid expression of his wishes (because someone exercised undue influence over him, the Will was not correctly executed, or because he did not have the level of competency necessary to make the Will), then you can try to challenge the Will. It's more difficult to do, but you might also be able to challenge beneficiary designations, trusts, or rights of survivorship that result in your dad's assets being transferred to others outside of his Will if you think that those were created under circumstances that make them invalid.   Either of these options means that you need to hire an attorney who does fiduciary litigation and handles contested guardianships/conservatorships or contested estates. You should likely assume that there will be an expensive, lengthy legal battle, and you should not assume that there will be any financial reward in it for you. However, if you are really concerned about your father's welfare, then you should look into option 1 and perhaps pursue it- that's the best way to protect him while he is still living, and it may also help ensure that his eventual post-death wishes come to pass.   Best wishes to you and your famiily.  ... Read More

I am so sorry for your situation; you have my deepest sympathy.   You can't force your son to get help, or to accept it. You can take steps to ensure that you do not leave him any assets outright. You can also take steps to ensure that any assets that you do leave him will be available and can be used by a third party in ways that will help him and not allow him to indulge in self-destructive behavior with your assets. You should consider having your estate planning provide for your son's share of any inheritance you may leave him pass to a trust for his benefit- either a full-blown supplemental needs trust (a "third-party" one, since it will be funded by you, with your assets) or a community pooled trust. That way, if he is ever eligible for and applies for needs-tested benefits like Supplemental Security Income and Medicaid, the trust won't count against him, but it can be used to help improve his quality of life as much as possible, and he can't just waste it. That way, it will be there for him if and when he is ready to seek help, and it will be there for someone to use to help him as much as possible even if he continues not to seek help.   Find an attorney who works with familiies with disabled family members on estate planning matters, and get an estate planning consultation. Best wishes to you.  ... Read More

You could use a revocable trust, along with some beneficiary designations on your accounts, to try to avoid the need for your son to have to offer your Will for probate after your death. Whether you really need to do so, or whether you really want to take on the time and expense to create and fund the revocable trust (including retitling your home to the trust after the trust has been set up and reapplying for the homestead exemption after you've done that retitling), is a different question. And note: Probate in Georgia, with a well-drafted, correctly-executed Will and only one adult child, is not normally difficult or expensive. It is the administration of an estate or trust that take time, and you won't remove the need for administration even if you remove the need for probate.   Get an estate planning consultation with an experienced estate planning attorney. The attorney can discuss your concerns and your options with you, and the attorney can then help you set up whatever documents you decide to use. You won't be able to get the kind of planning help you need in this kind of forum, however- there's just no way for anyone to learn enough about you and your situation to give you real advice about what is best for you.  ... Read More

Please accept my condolences on your loss.   As for your question, if the deceased gentleman had a valid Will under which he left you something, then yes, you should have the right to receive the bequest. You will need to offer the Will for probate in the appropriate county. If his children have already opened his estate for administration (which it sounds like has happened if they have already sold the house), then you will need to HURRY. Find an attorney who helps with fiduciary litigation and probate matters, show that attorney the Will, and discuss the situation with the attorney. The attorney can then give you a better idea of what options you may have and what it may cost you to pursue them.  ... Read More

It sounds like your uncle was told the right thing. He needs to be appointed executor in order to complete the process. There is no way around this requirement.  It is unfortunate you need to complete this process for only $2,000, but your choice is do nothing and forget the money, or take the necessary steps to complete the process.... Read More

The process is simple, but gathering the necessary information might be difficult. Someone, presumably an heir, needs to apply to be appointed Administrator of the deceased person who owns the property. This means the person in whose name the real estate records indicate the owner is. If there are heirs who have died, the court will need to appoint a guardian ad litem to represent that deceased person's estate.  This is where the information gathering process gets very complicated.  The fact that your grandmother has been paying taxes relates to her ability to be repaid what she paid. It does not necessarily make her the owner.  You need an attorney specializing in probate work to get through this process.... Read More

Please give my condolences to your stepkids on the loss of their grandfather.   If he had no Will and there are no living children, then your stepkids will need to figure out whether there is anything in his estate and, if so, they will need to decide whether they want or need to open the estate for administration. They should try to gather as much information as they can about what he may have owned and what debts, if any, he may have had. If there is real estate, then they really do need to try to deal with the estate in some fashion. If not, then they may have the option of walking away if it looks like there isn't much there. They really should get a consultation with a probate attorney- opening an estate for administration and dealing with it is not necessarily that difficult a process, but it is one that has potential pitfalls, and having the assistance of an experienced probate attorney can be very helpful.  ... Read More

It's not clear to me whether your sister ever even actually got appointed as the executor of either of your parents' estates. Just because they may have had Wills nominating her does not make her the executor, and in a case like the one you're describing, where nothing else appears to have been done, she may well not have even offered either Will for probate.   You need to consult an attorney who can help with contested estates (look for one who handles fiduciary litigation as well as probate matters). The attorney can speak with you and try to figure out more about what has been done so far and then help you figure out what your options are. Unfortunately, this kind of situation is not one that can really be addressed in an online forum like this.  ... Read More

Please accept my condolences on the loss of your brother. As for your question, I am sorry, but I have no real idea what you are asking.   You would not normally execute a quit claim deed on behalf of a deceased person. The representative of the deceased person's estate would need to execute anything that deals with the deceased person's interest in the property. If it is you who would be executing a deed for some reason, and if the property that the deed relates to is located in Michigan, then the deed would need to comply with Michigan law and be recorded in Michigan, but you generally should be able to actually SIGN it in Georgia, if Georgia is where you live and where the deed is being sent to you. But please note: I strongly advise you to consult a Michigan attorney who works with real estate titles to determine the best way to handle any deeds that relate to Michigan real estate. Do not rely on information on the internet for that. Messing up the title to real estate can be an expensive mistake to fix.  ... Read More

Your spouse can file for divorce to begin the divorce process but for the divorce to proceed you have to be served. To be served, you can be personally served (by a sheriff or process server), you can acknowledge service (meaning you sign a document saying you received a copy of the divorce documents) or you can be served by publication (meaning he publishes a notice in the newspaper letting you know that he has filed for divorce). He should only do the service by publication if he does not know where you are, has no contact with you, has no way to get in touch with you, does not know any of your contact information, etc. (which likely does not apply here). Because you are the respondant (meaning he is filing and seeking the divorce so he is the petitioner), he should file the divorce in the county in which you live. You can check online to see if anything has been filed against you. Most counties in Georgia have electronic filing.... Read More

Were your divorce papers filed? If they were, then those are the documents that control. If you made a subsequent agreement with your ex-husband saying your youngest child can stay with him and you both signed that agreement that is evidence that you made an agreement but it is not a court order because it has not been filed in the Court so it does not supercede the prior order. If your divorce documents were not filed and they are just an agreement between you and the father, then that is a different situation and the most recent agreement you made with him (the agreement for your child to live with him) controls the situation. It does not matter that the documents are signed by a lawyer - they do not need to be. The notary signature helps verify the signature, but it does not invalidate the document.... Read More

If the estate is pending in Georgia, merely walk into the probate court where the estate is pending and ask for a copy of the entire file.  Estate files are public records and anyone is entitled to a copy of the file. You will have to pay for it.  If you are seeking to correct an alleged wrong, any attorney is going to need a copy of the file anyway to start working on the matter.  Better to get a copy of the file now and try to figure out for yourself what is going on.  ... Read More

Yes a conditional green card holder can self petition for a permanent green card under the violence against women act (VAWA) if she has been abused and physically assaulted by her husband. I would recommend that you retain counsel to process your application, because you really only have one chance to get it right.... Read More

You should have been notified when your father's Will was offered for probate, yes. The only exception is that, if you were under 18 at that time, your notice would have generally been provided to a guardian ad litem- generally, an attorney appointed by the probate court to review the Will and represent your interests.  ... Read More

You don't stated whether there was ever a divorce. You also don't state where the deceased person had his principal residence. Both of those things are critical facts.   In general, for people who have their principal residence in Georgia, a legal divorce causes a former spouse to be treated as if she died before the person did under a Will that was executed during the marriage and that does not specifically state that it is intended to remain in effect even after a divorce. But if there was a separation but never a divorce, then the ex-wife is not an ex-wife; she's a current wife, and still has full rights. And other states may have somewhat different results even if a divorce became final.   Whoever is nominated as the Executor of the Will needs to hire an experienced probate attorney to help with this situation. That's the best way for that person to figure out who has what rights.  ... Read More

So a United States citizen can sponsor their step child for a green card, provided that child lawfully entered the United States with inspection And provided that the marriage between the stepparent and the biological stepchild parent occurred prior to the child's 18th birthday. You should retain counsel to process the case so that it goes smoothly and without delays. Counsel in any state can lawfully represent you.   ... Read More