Georgia Estate Planning Legal Questions

To answer your specific question: to add a new owner to a deed, the existing owner has to execute a new deed that transfers the property to himself and the new owner, either as tenants in common (which will NOT cause the property to transfer automatically to the surviving owner if one owner dies) or joint tenants with rights of survivorship (which WILL cause the property to transfer automatically to the surviving owner if one owner dies). After the new deed is signed by the existing owner, witnessed, and notarized, it has to be recorded with the Superior Court for the county where the property is located. To mention some additional and very important things: Ideally, you should NOT use a quit claim deed to make this transfer; instead, a Limited Warranty or Warranty Deed is likely better. A quit claim deed may cause you to lose the benefit of title insurance you might have purchased. And please note: preparing a deed is NOT a good do-it-yourself project. Any mistakes can cause the transfer to go wrong, which can lead to you having title problems that could make it difficult or nearly impossible for you to sell the property or refinance it in the future. Get a real estate attorney to prepare the proper deed. And please consider consulting an estate planning attorney to make sure that adding your wife to the deed is actually what you want to do. You will be making a gift to her when you do so, and you will not be able to simply take the property back. And if you do decide to proceed with the change, the decision regarding whether you and she will own the property as joint tenants or as tenants in common is a potentially big one. There are benefits and negatives to both forms. Best wishes to you.... Read More

Yes, there are a  number of legitimate businesses who focus on managing fund for the benefit of disabled persons and making sure that their needs are provided for. These tend to fall into two basic categories: community pooled trust companies (an example of one of those is Commonwealth Community Trust) and corporate fiduciaries (a category that comprises both banks and brokerage firms that have trust departments and independent trust companies). A trust created for a disabled person's benefit is usually referred to as a "supplemental needs trust" or a "special needs trusts," and those also fall into two different categories: first party (those funded with assets that belong to the disabled person) and third part (ones funded with money from someone who is not the disabled beneficiary, such as a parent). Not all corporate fiduciaries handle supplemental needs trusts. An example of a corporate fiduciary that does handle supplemental needs trusts is Southeastern Trust Company. If you want to provide for your daughter's benefit, the best thing to do is find an experienced estate planning attorney who can help you establish a third party funded supplemental needs trust. Most such attorneys know of companies that can serve as trustee for your daughter's trust and can make recommendations.... Read More

Please accept my condolences on the loss of your mother. The answer is maybe. If the bank thinks you meet their credit standards and that the car is worth more than your mother owed on it, and if you will become the owner of the car under your mother's Will, then they may let you refinance it. You might also be able to get a loan from another lender and buy the car out of the estate. Be very careful if you are the executor or administrator that you properly carry out all of the estate administration, however: if there is any equity in the car and your mother has other debts, then those other debts may need to be paid even if you have to sell the car (to yourself or someone else) to get access to the equity in the car. If you will be handling the estate, please consider having an attorney help guide you through the process.  ... Read More

Unfortunately, if you have already tried submitting forms and documents and you aren't getting anywhere, and if you need help and advice on how to file additional documents, then you need to hire a NY attorney. Your other option is to give up on the funds. For one thing, unless you are actually the legally-appointed representative of your late grandmother's estate, you may not even have the clear legal right to claim the funds. If the funds are in the custody of New York State, then it will be their laws that you have to deal with. They aren't required to make it easy to claim lost funds. This likely won't be much consolation to you, but we have the same kind of situation in my own family, where several deceased family members have unclaimed funds on record in North Carolina. However, because there are no currently appointed Executors for their estates, there is no one who currently has the legal right to claim the funds, and the value of the funds does not make it worth opening (or re-opening) the estates to claim them. So there they sit, and will likely remain there forever. You can try contacting a legal aid organization in New York, but most of those groups won't help with estate-related matters like this. You may also be able to find a financial advisor or CPA who will provide you with some advice, if you are using that person for other matters. Good luck- I hope you are able to figure it out.... Read More

If your mother named you as the POD beneficiary on an account, that account belongs to you, and it does not become part of your mother's probate estate. It DOES become part of her estate for estate tax purposes, so if your mother's estate was large enough that an estate tax return is required, or if she was married and the Executor wants to allow her surviving spouse to use her remaining estate tax exemption and so an estate tax return is needed, then the Executor would need information about what was held in any such account at the date of your mother's death. But the Executor is not entitled to the funds. They're yours.... Read More

Please accept my condolences on the loss of your husband. As for your question about what kind of attorney you need to update your Will and trust, you need an estate planning attorney. Most estate planning attorneys can also handle probate matters, and so can also help you figure out what, if anything, needs to be done to wrap up your husband's estate and make sure your home is properly titled.... Read More

You need the administrator of the estates (who may be you- it's not clear from your post) to write a deed transferring the property from your parents' estates to you. It is often called an Administrator's Deed. That deed gets recorded with the Superior Court of the county where the property is located. The deed should not be executed or recorded before the estate administration has been fully completed otherwise- in other words, all of the creditors have to have been properly notified and outstanding debts paid in full, and the distribution must be made properly. Yes, you should have an attorney help you with all of that, including the deed. Find a good probate attorney and have them help you finish up the process.   Best wishes to you and please accept my condolences on the loss of your parents.... Read More

A temporary administrator can be appointed for both estates.  It would be unusual for one order to address two estates.  You should file to open your mother's estate so that it can receive the inheritance due it from your uncle's estate. A temporary administrator is not the way to proceed indefinitely. ... Read More

This is not an estate planning question, but what you have is a complete mess. Get a good real estate attorney ASAP. Again, NOT estate planning- get a real estate attorney. You may be able to rescind the deed based on your statement that you really didn't intend to give him the house. To get that, you will have to admit that you were trying to defraud the utility company, but at least it might get you your house back.... Read More

If "you" are a couple, then you actually should each have a Will. While there is such a thing as a "joint Will," they are not favored in Georgia and don't work very well at all. So I hope you mean that you each have Wills already. "Estate planning" is the process of analyzing a given person or couple's situation (family, finances, wishes, hopes, special issues, etc) and ensuring that they have legal documents, asset titles, and beneficiary designations all set up so that the person or couple and their loved ones are protected against the potentially devastating results of a death or incapacity. So yes, you should have an estate plan. Just having a Will is generally not enough: you also should each have, at a minimum, a power of attorney and an advance directive for health care. You may also need or at least be able to benefit from having other documents, such as revocable or irrevocable trusts, depending on what kinds of assets you own, how much you are worth, and what you want to leave as your legacy. Even if you already have all of the basic documents in place, if they are more than a few years old, it might be a good idea to have them reviewed. Georgia has had a number of very significant changes to its laws in the past 2 years, and there have also been a number of significant changes in federal law. These changes may mean that the documents you currently have could be improved to better serve you and your family. It may be that you don't end up needing to make changes right now, but if you have a review it at least lets you make sure that you know if you DO need some, or if there are some that you could make that would be beneficial for you and better serve your needs. Many estate planning attorneys offer estate planning consultations free of charge and free of obligation (like my firm), and it's time well-spent on your part. Best wishes to you.... Read More

Any given trust or estate should only have one address. Figuring out which one that should be depends on what you're dealing with. A Living Will does not have an address; it's simply a document that says what its maker wants done (or not done) with regard to his health care if he is in a medical situation that is believed to be hopeless and meets certain other conditions. After the death of the creator of a Revocable Trust, the trust will use the NEW trustee's address, NOT the old trustee's address. As for the probate estate of a person who split their residence between multiple states, you have to figure out which state was the principal residence and that will be where the main probate has to take place, if a probate is needed (if the revocable trust was correctly and fully funded and there are no beneficiary designations that would point assets to the probate estate, a probate may not be needed). The principal residence is called the "domicile." Determining the domicile of a deceased person is not always easy where they had residences in multiple states. You look at factors such as: where the driver's license was held, where cars were registered, where the person registered to vote, where they had memberships in clubs, religious organizations, and similar groups, what address the person used for federal income tax filing purposes, and where he spent most of the year. It's not a hard-and-fast rule, it's more a weighing of factors. BUT the address that is used for the primary probate is NOT the estate's address, necessarily- the estate will use the address of the person who is appointed as its executor. I hope this is helpful. However, please consult an attorney in person to help you figure out exactly where any probate might be needed and what state should be considered the domicile, as well has to help you with any estate and trust admininstration. Best wishes to you.... Read More

It is not on its face a conflict if certain disclosures are made. Remember,  your parents have a choice. However, I would not do business with someone who does this unless there is a full disclosure of the conflict in writing and signed by your parents. It should lay out completely the fees the executor will earn.... Read More

You can try to deposit the check into an account with your name on it, but if that doesn't work you may have to open the estate and deposit it into an estate account. You ideally also need to consult with a probate attorney to see what else you need to do: just because you are able to cash the check does not mean that it is yours to keep or that you don't have to deal with her estate.... Read More

There is no such thing as a small estate affidavit in Georgia, so the short answer to your question is no. There is a procedure in Georgia that can allow a vehicle title to be transferred without an estate being opened, under some circumstances (there must essentially be no other assets for which an estate administration or Will probate would be required). In those cases, the vehicle title has to first be reissued to one or more of the heirs, and then the new owner(s) can sell or otherwise dispose of the vehicle if needed. It isn't clear from your question exactly what you need to do or are considering doing; however, this kind of forum is not actually suited for actual situation-specific advice anyhow. Your best option is to consult an experienced probate attorney, have the attorney consider all of the relevant facts and circumstances, and let the attorney give you advice on what you can or should do. Best wishes to you.... Read More

Your stepfather has the legal right to the year's support, and you cannot prevent him from making a claim for it under Georgia law. All that any other heir can do with regard to a year's support petition is try to argue that the amount being requested is too much, given the surviving spouse's other resources. Unfortunately, if you don't hire a good estate litigation attorney who has experience in contesting year's support claims, you will likely have little to no chance to succeed in such a challenge. I'm sorry for your loss, but unfortunately the year's support right given to a surviving spouse is pretty strong in Georgia. If your mother really didn't want your stepfather to receive anything from her estate, she REALLY needed to do some estate planning (not just a Will, either).... Read More

Because the deceased person lived in Georiga, you will need to file to open an estate in Georgia, in the county where the person lived. If the person had a will, you will need to file a Petition to Probate Will. If the person did not have a will, then you will need to file a Petition to Appoint Administrator.... Read More

It sounds like your father has placed his home in a living trust and your mother is the beneficiary after your grandfather passes away.  The home will be included in your grandfather's estate for purposes of paying his debts at his death. Your grandfather could give the home to your mother today, and maybe it escapes being part of his estate if he survives for mroe than 5 years.... Read More

An express trust, meaning it is in writing, is a vehicle used to move assets out of one's name and into the name of a different entity.  I would need to know if it is revocable or irrevocable. For purposes of the below answers, I am assuming it is irrevocable. If so, then you probably are not the trustee which means you need a trustee’s permission every time you wish to make changes to the trust.  If planned prior to incurring any debts, it can be used to shield assets from creditors.  However, when one is creating a trust for this purpose, it is usually after a debt has been incurred.  The trust is no good in those cases.  A quit claim deed is a method of transferring an asset into the trust.  Be careful of any tax implications caused by the transfer. There is no anonymity as to what is in the trust name for someone searching hard enough. If you are using it for tax planning, then you should have more than $5.25 million (rough number) because that amount is exempt from estate taxation. If the trust is irrevocable, once assets are transferred into the trust, there is no transferring the assets back into your name.  Depending on where you live, a trust may not enjoy homestead exemptions for property taxes. You might experience issues in obtaining home owner insurance because you are no longer the home owner. The transfer into a trust may trigger the acceleration clause in your mortgage and your lender will call the mortgage due immediately. Your trust would become the borrower for future borrowing against the home since you are not the owner any longer.  Therefore, your credit rating may have little impact on whether the trust can get a loan.   As for your car, you might run into insurance issues. Further, if there is a loan against the car, you can’t transfer it until you repay the loan. Also, you can’t sell the car because you don’t own it.  You will need to get your trustee to sell it for you. If you finance car purchases, you would need the trust to be able to borrow money to buy the new car.     You should check with your banker, CPA and lawyer prior to making the above decisions because it can’t easily be changed once made. Irrevocable trusts have some advantages, but can cause significant problems in other situations.... Read More

This isn't a question that I can answer, but here are a few factors: Georgia has a (small) income tax; Florida doesn't. Georgia's probate system is much easier and less expensive to deal with than Florida's, and in many cases (not all), Georgia residents end up being able to less complicated estate planning as a result. Georgia has more mountains and hills; Florida has more beaches. Florida tends to be warmer all year round; Georgia has more of the seasonal changes. Florida has a lot of trouble right now with invasive foreign species such as pythons and tarantulas that are taking over the native wildlife; Georgia has some problem with that but not as much. Both states have alligators, although Florida has more of them. If I were trying to decide where I wanted to make my home, I'd pick Georgia. But then, I'm biased; I'm a native. And I like hills and mountains better than the beach.... Read More

It is difficult to say what is high, or low, or the right price.  Attorneys have an ethical duty not to charge too much to their clients.  However, what is too much cannot be defined until after a case concludes.  It sounds like your attorney is proposing to work on a contingency fee.  In that case, a 1/3 fee is not necessarily high.  On the other hand, if you pay for the services up front and pay an hourly fee, then $8,000 seems high to establish an estate.  However, there is a lot that goes into creating and administering and estate, and I cannot tell what the complexities might be in this matter, what other assets might exist, what bills must be paid, etc.  Therefore, your best way to determine what a fair price is will be to interview two or three lawyers who specialize in probate work and see which lawyer you like and which lawyer charges you what you perceive to be a fair price.... Read More