Georgia Estate Planning Legal Questions

Please accept my condolences on the loss of your father and the imminent passing of your stepmother. As for your question, your father's Will may still provide for the property that your stepmother was to receive to pass to her even if she passes away before the Will is probated, but you have to read the actual Will to determine exactly what should happen. In many cases, a Will contains a requirement that a beneficiary survive the person who wrote the Will by a minimum period of time in order to become entitled to receive the benefits that the Will provides for that beneficiary. For example, our standard Will form generally requires that a person's spouse survive them by at least 60 days in order to receive benefits under the Will. This is designed in part to avoid a situation where assets pass from one person's estate to a deceased beneficiary's estate. If your father's Will contains that kind of provision, and if your stepmother actually ends up passing away before she meets the minimum survival period, then the property would normally be distributed under your father's Will as if your stepmother died before your father. However, if your father's Will provides for a minimum survival period and your stepmother has already lived at least that long, then the bequest provided by your father's Will for her will likely end up distributed as provided by the Will. This may mean that property is distributed to her estate, if it was to be an outright distribution. However, if your father's Will provided for property to pass to a trust for your stepmother, rather than outright, then the trust will likely end up distributed in whatever manner it was to be distributed at your stepmother's death. To summarize, what your father's Will says happens is what will happen. Find an attorney who deals with probate matters in the state where your father lived when he died, and have that attorney review the Will and help you with the probate. If your stepmother is capable of signing a consent to probate, you may also want to have her do that before she passes away, as otherwise you may not be able to probate your father's Will without the consent of the Executor or Administrator of your stepmother's estate. Best wishes to you.... Read More

It appears that this is a Medicaid Asset Protection Question / Medicaid Estate Recovery question. The answer to this is complex. A trust can protect assets. Transfers of property in certain situations can be exempt for the purpose of determining Medicaid eligibility.  You need to discuss your specifics with a GA elder law attorney.... Read More

Assuming it was drafted even half-decently, your trust should state in it what you need to do to amend it. And yes, legally speaking, as long as you follow the requirements you can amend your trust yourself. But doing so is likely a very, very, very, very, very, very bad idea. Please do your desired beneficiaries a huge favor, find a good, experienced, estate planning attorney, and have the attorney help you make any changes that are needed or desired. It is so easy to overlook or mess up important details if you don't know what you're doing. Best wishes to you.... Read More

Fees vary greatly from attorney to attorney. Many estate planning attorneys provide a fixed fee for estate planning services such as drafting Wills. However, in our firm, and likely in many others, the fixed fee itself depends on exactly how the documents will be structured. For this reason, while you can often call an attorney's office and find out what the fixed fee range may be and how fees work, in many cases to get an actual quote you will need to have an estate planning consultation, at which the attorney can learn more about what your needs and wishes are and help you develop a plan that will include a set of documents. The attorney can then give you an exact fee.   For various reasons, my firm does not post its fees in a public forum. However, you are welcome to call my office and ask our office administrator about the process, our fee ranges, etc. You are also welcome to schedule an estate planning consultation, if you wish. We do not charge for the consultation, and there is no obligation to proceed with any work. But having a consultation is the only way I could give you an exact proposed fee.   Best wishes to you.  ... Read More

Please accept my condolences on the loss of your spouse. As for your question, you really shouldn't so much "rewrite" a Will as just do a new one. Unless you have some kind of irrevocable trust planning in place, you should be free to do new estate planning documents. Find an estate planning attorney and schedule a consultation. The attorney can help you consider your situation and your wishes, and can then help you develop an estate plan that reflects those and fits you. Ideally, that would mean a new Will, a Power of Attorney, and an Advance Directive for Health Care, to make sure that you have documents in place that will allow someone to help you if you ever become incapacitated as well as a Will that provides for the management and distribution of your probate assets after your death. The attorney should also review beneficiary designations with you, to make sure that those items are coordinated with the rest of your planning.  ... Read More

I'm not sure exactly what you are asking, because it looks like there may be a typo in your post. However, since you mention that your mother lives with you and has dementia, I am going to assume that you're asking how you can help manage her affairs if and when she begins to need that help.   If your mother is still relatively competent, even though she has a dementia diagnosis, what she ideally needs to do is get good estate planning documents in place. Those should include a Will, a Power of Attorney, and an Advance Directive for Health Care. Using the Power of Attorney and the Advance Directive for Health Care, she can name you (or someone else) as her agent for financial and medical decision making. These documents should allow yout to help her with whatever she needs help with if her condition gets worse. She may also want to create a revocable trust for herself, and name you or someone else as a Trustee. Having a revocable trust can be another way to ensure that someone can help you with your finances if needed. Please note, however: YOU can't do any estate planning for your mother. She needs to do it for herself.   If your mother is no longer able, or is not willing, to do appropriate estate planning and name agents who can help with her needs, then unfortunately you may eventually need to get appointed as a guardian (for health care) and conservator (for finances) for her. Those roles are ones to which you must be appointed by a court. You would need to hire an attorney to help you file the appropriate petitions. Contact an attorney who does guardianship and conservatorship work if you think you may need to go this route.   Best wishet to you and your mother.  ... Read More

If anyone who does not receive an interest in your home is living there at the time of your death, then the Executor of the estate or the beneficiaries of the home will eventually be able (and likely willing) to make that person move out, whether he's your stepson or someone else. If you don't want this to happen, and if you want to provide some protection for your stepson after your death, then you should address those wishes in your estate planning. There are options. Contact an experienced estate planning attorney to discuss them.   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

It all depends on whether the deed is a tenants in common deed or a joint tenants with rights of survivorship deed. If it is a joint tenants with rights of survivorship, you need to do nothing.  If it is any other kind of deed, some action in probate court will be required.  It might be as simple as a Petition for Year's Support or a Petition to Appoint Permanent Administrator.... Read More

I'm not exactly clear on what your question is, but it appears to relate to how you could step in as successor trustee of the trust. Unfortunately, there's no way to answer that question without a lot more information that can be provided in this kind of forum.   The first place to start when figuring out who becomes successor trustee of a trust when a serving trustee stops serving is the document that actually creates and contains the terms of the trust, plus any later documents that might have affected the trust's terms. Since the attorneys are trying to find your grandfather's Will, I assume that the Will is what created the trust. If that Will was filed for probate (in NY or elsewhere), then the probate court should be able to provide a copy, although if it was filed in 1972 it can take a while for them to pull up that record, so hopefully it will eventually turn up. If the Will was not filed for probate, then it may be that a separate document created the trust- in that case, you'd need to get a copy of that document (hopefully your father had one). If the trust was created in part by state law, however, you'll need to see what the applicable law said.   If whatever document controls the trust does not provide for a successor Trustee and does not address the question of how to select one if one is not named, then you will need to look to applicable state law (which may actually be NY law if the trust was created by a NY Will, even if the trustee and beneficiaries are all in GA and the trust was being managed here), and figure out how to make it happen. A court petition may be required, and you'll need to figure out what is required for that petition to be filed and granted.   If there are already attorneys involved (it sounds like there are), then you should let them figure things out. If at some point it looks like they aren't figuring it out, then you can hire a different attorney. I recommend hiring an attorney who works with fiduciary litigation as well as general trust and estate administration- that kind of attorney is most likely to have the experience and knowledge needed to help you figure out what needs to happen and get it done.   Best wishes to you.  ... Read More

I'm sorry, but I can't tell from your post what your question is. I do want to point out a couple of things, however, in hope that the information helps you some. But if none of this answers your question, you will need to post another one with more information.   A "Living Will" does not transfer property. It's a document that says what kinds of medical treatments or other life-support measures one wants if one is incapacitated and either terminally ill or in a permanent coma or vegetative state.   I assume you mean that your mother had a Will (or a "Last Will and Testament". She may also have had a revocable trust, which is often called a "Living Trust." If your mother moved from Georgia to Florida, then ideally she would have updated her estate planning, including any Will, revocable trust, Power of Attorney, Advance Directive for Health Care, or Living Will documents. That's because what works in Georgia is not exactly the same as what works in Florida, and so if you change states, you ideally should eventually update your documents to reflect the laws in the new state and not your former state. However, your stepfather would not normally have any legal power to change your mother's Will- if you believe that he actually did forge a Will, or if he essentially forced her to change her Will (or other estate planning documents), then you may be able to challenge the document in question. Since she was in Florida, you will need to speak with a Florida attorney about what rights and options you might have.   As for the part about your grandmother's house: if your mother owned that house in her own name, and if it was not subject to any kind of legal restrictions imposed by your grandmother's estate planning documents or the deed, then most likely your mother (or someone acting on her behalf) had the legal right to sell it, even if you were expecting to receive it someday. If you believe that there WAS some kind of trust or deed-based restriction on the property, however, then you'll need to actually talk to an attorney about how the property was owned before the sale. The attorney can then investigate your claims and tell you if you have any rights and how to go about pursuing them if you do.   Best wishes to you.  ... Read More

Assuming there is no will, then the land should have been distributed to your grandmother’s spouse, if living at the time of her death, and to her children living at the time of her death. Children who died, but have children, will have that child’s share distributed to the deceased child’s children.  ... Read More

Please accept my condolences on the loss of your father. As for your question, something is odd about what you are saying you've been told. If the property was owned by your father when he died, then either (1) the title to the property is still in his estate, because he was either the sole owner or he owned his interest in the property with other owners, but as tenants in common, or (2) the title to the property actually belongs to other people already, and no part of it is in his estate, either because he and the other owners held the property as joint tenants with rights of survivorship or because he died without any valid Will in place and the property passed to his heirs at his death under Georgia law, subject to being pulled back into his estate by the appointment of an administrator. If your father's interest in the property did not pass automatically to you and your brother as surviving joint tenants, then you and your brother should not be able to sell the property at all until his estate is opened, UNLESS you are selling it as his only heirs, he had no Will, and his estate has not been opened for administration. However, in that case, the check should be made out directly to the two of you, not to your father's estate. If you are being told that the check should be made to the estate, and the estate has not been opened yet, you should not be able to even sell the property until the estate has been opened. You need to hire a probate attorney who can sit down and actually review all of the relevant facts of the situation and guide you on what to do and what to tell the person who is trying to make out the check. If you need to open the estate, the probate attorney can help with that. If you and your brother really don't need to open the estate, then the probate attorney may be able to help you explain that to the real estate attorney and get the check made out directly to you. This kind of forum does not allow anyone to provide you with that kind of situation-specific legal advice, however. Best wishes to you.... Read More

Wills cannot be changed legally using a power of attorney. You cannot challenge that until the person dies and the will is offered for probate.   As for the property disappearing, you can file for a guardianship over the person and have the power of attorney declared invalid.  You should discuss this with a lawyer specializing in guardianship law.... Read More

If something, such as a POD account, passes outside the Will, it is only clawed back if the estate which passes under the Will is insufficient to pay expenses. Some states have an inheritance tax.  Some states have an income tax.  Federal income tax applies to all income, including through a POD account.... Read More

Your situation is more complicated than simply suggesting to you who would make the best person to watch over your grandchildren inheritance.  There are several ways to skin the cat in your fact pattern. Some type of trust is most likely the right answer. You should speak with an attorney specializing in estate planning. Otherwise,  the best laid plans of mice and men . . .... Read More

Your father in laws heirs need to open an estate.  Once the estate is opened, they can sell or retitle the car. If you can find the title, his wife can take the title to the tag office, and have the car retitled. Once title is in hand, the owner can legallt stop whoever is taking the car.... Read More

The fact that you paid for the property actually doesn't really have any bearing on ownership. If you paid for a property that was partially owned by another person, you made gifts to that person each time you made a payment that benefitted them. You don't provide one critical fact: How did you and your mother hold title to the property? If the deed clearly states that you held it as joint tenants or with rights of survivorship, then you are likely correct, and you are likely now the sole owner of the property. However, if you and your mother were both listed on the deed as owners, but the deed did not specifically and clearly create a joint tenancy with rights of survivorship between the two of you, then, assuming it is a Georgia property, your mother's interest became part of her probate estate at her death and passed either under her Will (if she had one) or under the Georgia intestacy rules if she didn't have a Will. In either case, your sister may actually own an interest in the house, because she may have received a share of your mother's interest. You should ideally sit down with an attorney and figure out what exactly happened. The attorney will need to look at the deed (which is not the Security deed, but is generally a Warranty Deed, Limited Warranty Deed, or Quit Claim Deed) for the property to see how it was titled. Depending on what that says, you may then need to have the attorney help you figure out what happened when your mother passed away. Best wishes to you.... Read More

Please check out my firm's website: www.morgandisalvo.com We have posted a large number of articles, many of which discuss the difference between a Will and a trust, the reasons that you might want to use a revocable trust vs. a Will, and other issues that relate to your question. If you want detailed advice on whether you should consider doing any kind of trust, revocable or irrevocable, or whether you will be okay just using a Will that will create trusts for your children if you die while they are still young, then you really need to schedule an estate planning consultation with an estate planning attorney. Best wishes to you.... Read More

To avoid probate, which is truly not cumbersome or expensive in Georgia, you need to have all assets titled in joint name, or have beneficiaries identified for the assets, or you need to establish a revocable living trust. Not a living will. Most good estate planning lawyers can assist you with establishing a revocable trust.... Read More