Georgia Trusts Legal Questions

Please accept my condolences on the loss of your sister. As for your question, I can't actually tell whether your late sister had a valid Will, because you mention that it named an Executor but you also state that it named your other sister as a power of attorney agent and you to make health care decisions, and a normal Will would not do either of those two things. If your sister does not have a valid Will in the first place, which may well be the case if she tried to do her own Will and did not get good legal advice when she was preparing the document, then state intestacy law will apply to her probate assets, and not the document in question. That said, assuming for now that your sister does have a valid Will that names you and your other sister as beneficiaries and your other sister as Executor, the Will must be offered for and admitted to probate before it will become legally binding. That's not a requirement of any bank; it's a requirement of state law. A Will that has not been admitted to probate isn't doing anything legally. The probate process is how you prove that a Will is valid and should be given effect, and it is required before any Executor is appointed and before the Will can actually direct the disposition of a deceased person's assets. So no, a bank will not accept an unprobated Will as valid. The only way you can get access to a bank account that was owned by a deceased individual if you are not either a joint owner with right of survivorship or a designated beneficiary on that account is to have the person's probate estate opened through a probate or an estate administration and to have an Executor or Administrator appointed. Your sister who is named as Executor should consult an experienced probate attorney. Show that attorney the document you believe to be a Will and see if it appears to qualify as a Will. If it does, then your living sister should have the attorney help her offer it for probate. If not, then your late sister's heirs (which might be you and your other sister but may not be- I don't have enough information to be able to tell from your post) will need to see about having her estate opened for administration or whether a Petition for No Administration Necessary might be a good option. Best wishes to you.  ... Read More

In theory, the waiver of an inventory and reports only applies to the normal requirement that those documents be filed with the probate court, and does not mean that they do not have to be provided to heirs. However, in many cases administrators who aren't required to provide those documents to the court don't end up providing them to the heirs, either unless their attorneys push them to do so. Keep in mind, however, that not waiving the bond, inventory, and reporting requirements will likely mean that the estate administration costs more, which in turn may reduce the amount ultimately available for distribution. Not waiving those requirements may provide you with better protection but there are trade offs. You are entitled to have your own attorney represent you on these kinds of issues, and you really should consider getting a consultation. No one in this kind of forum can actually review the entire situation and understand what's going on. Best wishes to you and please accept my condolences on the loss of your father.  ... Read More

A lot depends on the type of trust and the purpose for which it is created. If your mother created an irrevocable trust 20 years ago and was trying to keep the assets held by the trust out of her estate for estate tax purposes, then no, she should not have been the trustee of that trust or a beneficiary, because if she were it could defeat the estate tax sheltering purpose of the trust. However, if she was setting up a revocable trust for other estate planning purposes, and she was to be the main beneficiary of the trust during her lifetime, then she definitely could have been her own trustee without it creating any kind of legal or tax problems. As for her then-attorney's statements that a beneficiary of a trust could not be the trustee- that's not really true, and it wasn't true 20 years ago, but it was the more conservative way to plan. If a beneficiary of a trust is also the trustee of the trust, then the beneficiary's ability to handle the trust and make distributions to the beneficiary or his own dependents needs to have certain limits placed on it (I don't have nearly enough room here to detail all of that) OR the trust will effectively end up treated as if it were the beneficiary's own property for various purposes, including estate taxes, income taxes, and creditor protection purposes. But with the right limits in place, yes, a beneficiary can be trustee of his own trust and still accomplish many of the benefits the trust might be intended to provide. However, if creditor protection is really critical, it may be desirable for the beneficiary not to be his own trustee, and in some cases, such as one where the beneficiary is disabled or needs protection from himself for some reason, then you would not want the beneficiary to be his or her own trustee.   The rules have not changed in this regard in the past 20 years. But your mother's old attorney may have been much more conservative (or perhaps not as well-informed) as her new attorney. She could also be misremembering his advice.    Trust laws do vary from state to state, although there is a trend towards making them more standard, but the rules I've discussed above generally aren't that different from state to state.  ... Read More

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

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

Please accept my condolences on the loss of your father.   In preparing an estate tax return (IRS Form 706), all assets in which your father owned an interest at the time of his death would generally be listed on the return. If the trusts were created under the terms of his Will using assets he owned in accounts at his death, then you don't really list the trusts on the estate tax return (except as beneficiaries), but you would normally include the assets he owned at his death that go into the trusts as part of his gross estate. I can't tell you whether the trusts you actually have should be listed on an estate tax return or not, though, because there are a lot of factors that would go into that determination and I don't have access to all of that information here.   Your post also raises a larger issue that I want to address: You do not file an IRS Form 706 to "close out" an estate; at least not in the typical sense of "closing out" an estate. If an IRS Form 706 is required (and from your post I cannot tell you whether an IRS Form 706 was required for your father's estate or not), then filing it and waiting for it to be accepted and a closing letter issued, or for 3 years to pass since it was filed, is part of the estate administration but it is far from the last thing you would do. The last tax return typically filed before an estate is closed out (after the administration has mostly been completed) is an INCOME tax return (IRS Form 1041), NOT an estate tax return. It could be that I'm just not understanding exactly what you have done and are trying to do now, and of course I have nowhere near enough information about the estate to know what you should have or may already have done, but it sounds like you might be trying to do the wrong thing.   If you do not have a probate attorney helping you with your father's estate, please consult one as soon as possible before you file any estate tax return on IRS Form 706. You may be wasting time and money filing something you don't need to file, and you may be overlooking steps that you should be taking. This kind of forum is not designed for anyone to be able to tell you what you should actually do in any given legal situation- that requires a lot more information than can or should be discussed in a public forum like this one.   Best wishes to you.  ... Read More

Please accept my condolences on the loss of your father. As for your question, 4 years can be a long time to hold an estate, but it may actually be a fairly reasonable amount of time. Whether it's reasonable or not depends a lot on what assets became part of the estate and whether an estate tax return was filed. If an estate tax return is filed, it can take up to 3 years after the filing, and the filling itself can take1 1/2 years after the death even if the return is filed on time. Without knowing a lot more about the situation, I can't say whether 4 years is reasonable in your father's estate, but it's certainly not impossible for it to take 4 or more years to wrap up and estate.   As for your question about getting information: An attorney for the executor, in Georgia at least, is not the attorney for the beneficiaries. If the attorney communicates with a beneficiary of the estate, the attorney generally is required to either (1) speak with the beneficiary's attorney, if the beneficiary has one, or (2) only provide the beneficiary with very limited information, being careful not to provide legal advice. You may have better luck asking the Executor directly- the Executor is not as restrained as the attorney is. However, if you feel that information is being withheld from you unreasonably, it certainly does not hurt for you to go ahead and hire an attorney to represent you. If you do, your attorney should be able to request information from the Executor's attorney and get it. Please also note, however, in some cases, the underlying Will may attempt to limit the information that beneficiaries can receive at all. In that kind of situation, the beneficiaries may not even be entitled to receive much information. Without knowing a lot more about the situation and the underlying documents, I could not tell you whether that is a factor in your father's estate, but it's possible.  ... Read More

Assuming that you have already asked for a copy of the trust and information about it, and been denied appropriate information, then you need to hire an attorney who works on fiduciary litigation. The attorney will likely need to send a demand letter to the Trustee of the trust. If that does not result in appropriate action by the Trustee, then your attorney may need to sue the Trustee for an accounting and for a copy of the trust.  ... Read More

Please accept my condolences on the loss of your mother. As for your question, if the life insurance policy had you as the only designated beneficiary, then your mother's husband would not normally have any rights to it. However, if the life insurance is payable to her estate then he may have some rights to the estate and, therefore, to the insurance proceeds, assuming that he survived your mother. If the insurance is payable to your mother's estate, then her Will would control what happens, in general, if she has a Will, but you may still need to address the fact that she was known to have been married at some point prior to her death and may still have a surviving spouse. If she has no Will, and if she has a legal spouse who is still alive and not divorced from her, then her spouse is one of her heirs, along with you and any other children, and those rights will need to be addressed. In short, if you are the only named beneficiary of the life insurance, it's yours. If not, and if her estate is the beneficiary, get a probate consultation with an experienced probate attorney in the state your mother lived in at her death, and find out what you need to do. Best wishes to you.... Read More

Please accept my condolences on the loss of your mother. A Will is not an irrevocable trust, so it's not clear to me what the reference to "Irrev Trust dtd" is your question is for. A Will and a trust are two different documents, although a Will can provide for the creation of a trust. Depending on how the document your mother had prepared was drafted, you may not have a lot of rights to receive information about it, especially if the document is a trust, rather than a Will. A person who creates a trust has the right to prevent beneficiaries from becoming entitled to receive much information about the trust. If you really are a beneficiary, you'll eventually receive something, but you may never be given all of the information you might want to see. If your mother DID have a Will, however, and if that Will has been offered for probate (which may or may not have been necessary, depending on what your mother owned and how she owned it), then you can contact the probate court for the county where she had her principal residence (I am assuming she also lived in Georgia- if not, then this answer may not be correct) and ask them to send you a copy of the Will and anything else that has been submitted for her probate. You'll need to pay for the copy, but it's not that expensive.  As for finding the law firm that prepared her Will, if you aren't the nominated Executor, then the law firm likely won't be able to provide you with information directly unless the Executor says that they can, so I wouldn't waste a lot of time trying to figure out who they were right now. Unfortunately, if your sister is not providing you with information, you may need to hire your own attorney, one with estate litigation experience, and have the attorney send her a letter demanding information. This is especially true if no Will has even been offered for probate, because you can't get information from the probate court if they don't have it. Get a consultation. Best wishes to you.... Read More

Normally, a trustee is not required to get the consent of or provide notice to any beneficiary before selling trust property. That said, the trustee IS normally required to provide at least the main beneficiary of a trust with information about what is in the trust and what has come in and out of the trust in any given year, unless the trust itself limts the beneficiary's right to that knowledge. So, if your sister is your trustee and you are not receiving ANY information, then you should contact an attorney who is experienced in working with trusts and have the attorney help you figure out what your rights are and what you should have been receiving, along with your options for correcting the situation. It may be that you can have your sister step down (or have her removed) and have a different trustee brought in, if she really isn't doing a good job. Best wishes to you.... Read More

A trust is controlled by the terms of the document that creates it; there's no such thing as a standard trust that is spelled out in the law. What that means is that no one can tell you what kinds of distributions are permitted from your child's trust without actually seeing the trust document. In general, it would be fairly common for a trust for a person to allow for something like the purchase of a car for that person; but that does not mean that your child's trust permits that kind of distribution. Find an attorney who is experienced with trusts and have that attorney review the document that controls the trust. That's going to be the only way you can actually know what it allows. Best wishes to you and your child.... Read More

Ms. Disalvo gave you great advice.  There are problems with finding trust, just like finding life insurance policies.  Without finding evidence in your father's records, you will struggle to find a trust.  Tax returns might provide insight into your Dad's conduct and find something related to a trust in his tax records.... Read More

If you are receiving payments from an unknown person, I would report it to the bank or the police. That is improper.  If on the other hand, a trustee is telling you that you are a beneficiary of a trust, but he will not reveal the settlor of the trust, you can demand a copy of the trust so that you can ensure you are getting the proper payments.  ... Read More

You need to have the trust explained to you.  Contact the trustee to see what the requirements for distributions are for your child's trust.  Most trusts have a HEMS standard for distributions.  This means the trustee can provide money for the health, education, maintenance and support of the beneficiary.  A car woudl typically be something a trtustee could do under these standards, but the decision is in the discretion of the trustee. A trustee can be called to task if he is too tight with the distributions.... Read More

In general, you should not need a child's birth certificate or Social Security number in order to create a trust for that child's benefit if the trust is being created by a Will or a trust agreement that your father is having prepared. If your father is trying to set up a 529 Plan college savings account, or even a custodial account, then some of that information might be needed. You may want to try to find out more about what your father is trying to do. But if you don't feel comfortable giving out your children's information, certainly don't give it out.... Read More

Please accept my condolences on the loss of your father. If your father died without a Will, as you state, and if he did not have more than $10,000 in his account, Georgia law allows the bank to close the account and turn the money in it over to his next of kin. Here are the relevant parts of the law. Please note: as described at the end of the quoted statute, the persons trying to claim the account must provide an appropriate affidavit stating that they qualify under OCGA Section 7-1-239 to receive the property in the account. It may be helpful for you to have an attorney prepare that affidavit for you; that shouldn't be an expensive thing. The attorney can also review with you the entire situation and help you make sure that you know what to do to protect yourself and your brothers from potential liability to the IRS or anyone else to whom your father may have owed money. But if the facts are as you've described them, dealing with the estate properly may not be all that complicated. Best wishes to you. § 7-1-239. Payment of large deposits of deceased intestate depositors; deposit of sums held for deceased intestate residents; affidavit included with application for deposit. (a) Except as provided in subsection (b) of this Code section and in Article 8 of this chapter, whenever any person dies intestate having a deposit of not more than $10,000.00 in a financial institution, such financial institution shall be authorized to pay the proceeds of such deposit directly to the following persons: (2) If no surviving spouse, to the children pro rata; (c) Payments pursuant to subsections (a) and (b) of this Code section shall operate as a complete acquittal and discharge to the financial institution of liability from any suit, claim, or demand of whatever nature by any heir, distributee, creditor of the decedent, or any other person. Such payment is authorized to be made as provided in this Code section without the necessity of administration of the estate of the decedent or without the necessity of obtaining an order that no administration is necessary. (g) Application by any claimant or claimants entitled in this Code section to receive deposits at a financial institution shall include an affidavit by the claimant or claimants which states that they qualify as the proper relation to the decedent as specified in this Code section and that the claimant or claimants know of no other corresponding claimant or claimants to such deposit. The financial institution may rely on a properly executed affidavit in disbursing the funds according to this Code section. GA. Code 7-1-239 Payment of large deposits of deceased intestate depositors; deposit of sums held for deceased intestate residents; affidavit included with application for deposit (Georgia Code (2018 Edition))... Read More