Georgia Estate Planning Legal Questions

If your father owned the car, then the car became part of his probate estate when he died. If he didn't have a Will, then his probate estate assets must first be used to pay any year's support claim, debts, funeral expenses, administrative expenses, and taxes, and the remaining assets (if any) are then to be distributed to his heirs. Your father's heirs would include his spouse, if any, any living children, and any living grandchildren he might have by any child of his who died before he did. A surviving spouse or surviving minor child can make a claim for a year's support from the estate; adult children or other heirs can't. If there is no year's support claim or the claim does not take all of the probate assets, then the probate estate assets that remain after everything has been paid are divided among the heirs, with an equal share (not less than 1/3) for the spouse and an equal share of the rest for each child. If the car loan was not paid off, the lender on that loan would be entitled to the proceeds from the sale of the car until the loan is paid. The loan will have to be paid before any heir could keep the car. If there is insurance that will pay off the loan, then the car may still need to be sold and used to pay other debts before it can be kept by any heir. If there are other assets, like real estate or bank/brokerage accounts, that became part of the probate estate, then someone may need to get appointed as the Administrator of the estate. As part of the administration process, the Administrator would need to gather up the assets, make sure debts, expenses, and taxes are all paid, and then distribute any remaining assets. The Administrator can either sell the car or distribute it as part of this process, by signing the title as Administrator and providing a copy of the Letters of Administration to the buyer or recipient so they can get a new title. If there are no probate assets other than the car (except perhaps for things like clothing and furniture without any significant value and less than $10,000 in any given bank or brokerage account), then the heirs may be able to transfer the car to one of them using an Affidavit of Inheritance along with the title to the car. Please note: just because the car can be transferred this way does not make it exempt from creditor claims, and if an heir takes the car and the estate has more debt than it has assets, the creditors can come after the person who received the car personally, to get back the value of the car. If the original title to the car can't be found, the estate will have to be opened because the replacement title can only be issued to the estate, not to any heir. The replacement title would then be needed to sell or transfer the car to a new owner. You should consult an actual attorney for help in determining the best way to deal with your father's estate.  ... Read More

No, you can't simply add someone to the deed to your property and protect it from Medicaid recovery claims. Under Georgia law, the property will still be subject to recovery claims if you ever receive benefits, even if it passes to the joint owner at your death automatically. In addition, if you do add someone to your deed, you may also prevent yourself from being able to get Medicaid benefits in a timely manner if you need them, you make a potentially large taxable gift for gift tax purposes and become subject to the requirement that you file a federal gift tax return to report the gift (you may not pay any actual tax, but you still have to report it), and you expose your property to potential creditor or divorce problems the new co-owner may have, either now or in the future. We generally do not recommend adding someone to your deed. Instead, you should find a good elder law attorney and consult the attorney regarding planning for your long term care. This should include a look at the chance that you might need Medicaid and a discussion of planning steps you can or should consider taking, along with looking at other potential ways to pay for your care that could be available to you.... Read More

I almost NEVER recommend adding your children to your real estate while you are still alive. Doing so makes a gift, generally a taxable one for which you need to file a gift tax return. It also exposes your real estate to your children's potential problems: divorce, creditor problems, etc. It can also create significant problems for you if you ever find yourself in need of Medicaid benefits for your own long-term care, and create problems for you for income tax purposes if the property is your principal residence and you sell the property during your lifetime. If you are considering adding your children to your real estate, you should first consult an estate planning attorney to discuss your reasons for thinking that you should do so and see whether there is a better way to address those concerns (there generally is). That being said, you do not have to use a quit claim deed to transfer interests in real estate. There are other types of deeds, and, in fact, it may often be preferable to use a Limited Warranty Deed or Warranty Deed to make a transfer with regard to real estate, because that can help preserve the benefits of any title insurance policy you may have on that property. But you DO have to use a deed to transfer an interest in real estate during your lifetime; there's not another way (at least not in Georgia--if you are in another state, that state's laws may allow for other kinds of transfers). The process of determining what kind of Will a person needs and what provisions that Will should have is ALWAYS estate planning. That's a large part of what that term means. The rest of estate planning means making sure that the person who is making the Will also has other needed documents, such as a Power of Attorney and and Advance Directive for Health Care, and helping the person make sure that any beneficiary designations and jointly owned assets will pass in the intended manner and not in a way that contradicts the intent. You don't have to be wealthy or have a complicated life to need estate planning. So no, I do not ever just help someone make a Will without engaging in estate planning. That being said, I have clients who have very simple Wills, as well as clients who have very complicated plans using all sorts of documents. Like many of my fellow estate planning attorneys, I am happy to work with people who need only simple planning as well as those whose needs are more complicated. The important part, from my perspective as an attorney, is that my clients need to be people who care what happens both during their lifetimes and after their deaths, and want to make sure things are done correctly. If you are interested in speaking to me, I do offer a free estate planning consultation. The purpose of the consultation is to determine the potential client's needs and goals, and develop an appropriate plan and a fee proposal. Best wishes to you.  ... Read More

If you were never discharged as Administrator, the case was never closed and any heir or creditor can raise an issue with the Court concerning your failure to handle your duties properly.  If you believe you performed all of your duties and you have distributed all property of the estate, you should file a petition for discharge seeking to be relieved of any further obligations related to the estate.... Read More

You may find an attorney who is willing to review and help you sign documents that the attorney didn't prepare, but honestly you will likely not be well-served by that course of action. In order to review a Will and revocable trust, for example, any attorney at my firm would need to read the document in depth, in addition to meeting with you to understand your situation, your wishes, and what you are trying to accomplish in the documents, in order to ensure that the documents are adequate or to know what changes should be recommended. That kind of work is generally hourly rate work, and a thorough review and consultation takes a lot of time. You would likely be better off just having new documents prepared (an amended and restated revocable trust), especially if you find an attorney who does estate planning work on a fixed fee basis. In my firm, we always review existing documents as part of an estate planning consultation, and if the underlying documents really are pretty good, then sometimes we can help with the few changes needed. But it is almost never the most cost-effective way to do it, because there's so much from-scratch work and we can't give you a flat fee because we don't know how long it will take. If you really are set on doing this yourself and just finding an attorney who will review the documents you prepared and help you sign them, this is not the correct forum. You will need to look up attorneys in whatever area you want to work in, and then call or e-mail each attorney's office directly to see whether or not they will perform this kind of work and how they will charge for it. Again, you may find one. But it likely won't be inexpensive.... Read More

No, if the power of attorney was properly signed by the principal (the appropriate parent) and witnessed correctly, the fact that it was prepared by a disbarred attorney does not invalidate it. However, if your parents have any concerns about the power of attorney and whether it is well-drafted or valid, they should certainly have a licensed attorney who practices in the area of estate planning give it a look.... Read More

I hope you see this answer, because it isn't possible to e-mail you as you requested. Attorneys who see questions posted in this forum aren't given e-mail addresses for the posters. I am sorry to hear that your uncle is such an unpleasant person, and I am very sorry that your aunt has gotten herself involved in a situation where she owns real estate with him. This is a very good example of the type of situation which unfortunately often results when family members purchase real estate together, and is the reason I tell most of my clients NOT to buy real estate with siblings or other non-spouse relatives. If your uncle owns an interest in the real estate, he owns an interest in the real estate. Your aunt might be able to sue to have the property partitioned, and she might have some ability to try to sue him for his share of taxes and other expenses, but those are not actions that would normally be steps you could take unless you were your aunt's legally appointed conservator or the legally appointed executor or administrator of her estate. Your uncle's interest in the property is his, and he is free to leave it to his wife if he wants to do so. You can't sue him or anyone else just because you don't like that idea. I am sure you mean well and would like to help your aunt, but quite honestly if she is willing to let her brother treat her so badly there isn't really anything you can do about that. If the situation distresses you, then your only option may be to remove yourself from it by moving out of your aunt's house (without regard for where she ends up if you do) and letting go of any idea that this property can be kept away from your uncle and his wife.        ... Read More

The answer to whether the government can take the assets of a person who has been convicted of a crime depends on various factors. If the person was subject to a fine, or to an order requiring him to pay restitution, then yes, the government can likely take any assets he receives, including inherited ones. It may be possible for your father to protect the property he wants to leave to your brother by putting it into a trust for your brother, instead of leaving it to him outright. Your father will need to consult an experienced estate planning attorney in the state where he lives to see what his options may be. The attorney will need a lot of information about the crime, the conviction, and the punishment, as well as your father's situation in general, so it's not the sort of answer that can easily be given in a forum like this. It's also not a do-it-yourself project, so you dad should get some professional help.... Read More

Not knowing who the third party is makes answering your question difficult.  It could be that the third party is the administrator of the estate.  If so, he has a right to bring an eviction proceeding. If it is the administrator of the estate, he is not a third party.  He actually is the only person with authority to deal with the property. Presumably you have been paying rent to someone during the time that you have lived in the property? In any eviction proceeding, the party bringing the claim will have to prove that he has the legal right to dispossess you.... Read More

First, I'd like to explain that there is no such thing as "joint tenants in common with rights to survivorship." There are two forms of joint ownership in Georgia: one is "joint tenants with rights of survivorship," and the other is "tenants in common." The difference is that a parcel held as joint tenants automatically passes to the surviving owners at the death of one owner, while a parcel held as tenants in common does not. Instead, the interest held by a deceased tenant in common passes to his probate estate and can be controlled by his Will or intestacy if he has no Will. Second, your father needs a Will to control where his property goes, not a "living Will." A living Will is a health-care related document, and Georgia doesn't even use a living Will form anymore. It was made part of an Advance Directive for Health Care in 2007. A regular Will (or "Last Will and Testament") is what your dad needs to direct what happens to his assets at his death. As to the actual question: your father has been making gifts to your sister every time he pays the mortgage or other expenses, and he made a gift to her of her 1/3 share of the down payment when he made it. He's also been making gifts to your mother, but those likely don't have gift tax consequences. Your sister is a real owner of 1/3 of the property, even if she never paid a penny, because her name is on the deed. If she is willing to sign her interest back over to your parents, then they can have her sign a deed (preferably either a limited warranty or warranty deed, and not just a quitclaim deed) and give her interest back to them. She's making a gift at that point. If she's not willing to sign her interest over, then they'll have to try to buy her out. Your dad should consult an estate planning attorney as soon as possible to discuss options and figure out how to move forward.... Read More

If you pass away and your husband survives you, then both he and all of your five children (I believe from your question that all of the children are yours, but that only 3 are your husband's) would have potential rights as heirs to your estate. That means that any assets that become part of your "probate" estate might be divided between the 6 of them, if you have no Will. Your husband would receive 1/3, and the 5 children would divide the other 2/3 in equal shares. However: many assets may not become part of your probate estate, and your husband, along with any child who was still under 18 at your passing, could potentially receive larger shares of the probate estate by making a claim for "year's support" under Georgia law. Children who are 18 or older cannot claim a year's support. A year's support claim can result in the entire probate estate going to the person or persons making the claim, with no assets going to the other heirs. If you have a Will, there is still a potential year's support claim, but the assets that remain are divided in accordance with the Will. Your heirs just have a chance to try to challenge the Will. Assets will only become part of your probate estate if you (a) own them in your name and (b) no right of survivorship or beneficiary designation applies, or (c) a beneficiary designation applies, but your estate is named as the beneficiary. For example, if you own a piece of real estate in your name, with no joint owner, that will become part of your probate estate. If you own the real estate jointly with your husband, then it may be that your half becomes part of your probate estate, or it may be that your half automatically transfers to him outright, depending on how the deed is worded. A bank account held jointly will normally automatically transfer to the surviving owner. A bank account held in your name will become part of your probate estate unless you have a POD or TOD designation naming a specific beneficiary; in that case, it will go to that beneficiary. I only get 3,000 characters, so I can't go into much detail. Ideally, get an estate planning consultation with a good attorney. Most offer free consults, where you can get a better idea of how these rules will actually play out in your situation, instead of general discussions.... Read More

Your question brings up a few different issues. For distribution purposes: A tax-deferred retirement account would normally be distributed under a beneficiary designation, which means that the Will would not control the disposition of those assets unless you designated your estate as the beneficiary. For income tax reasons, designating your estate as the beneficiary of a tax-deferred retirement savings account is NOT a good idea. Therefore, for purposes of dividing up your assets, ideally the tax-deferred retirement fund should NOT be controlled by your Will. Instead, you want the beneficiary designation to coordinate with your distribution wishes. It can name the same people who will benefit under the Will as beneficiaries. For estate tax purposes, the retirement fund will be added to your other assets in determining whether you have a taxable estate. Georgia has no estate tax, however, and the federal estate tax exemption is very high ($5.43M today, less taxable gifts made during lifetime), so most Georgia residents will not have taxable estates. For income tax purposes, cash or other assets you leave to your beneficiaries is normally not subject to income tax in their hands. However, a tax-deferred retirement account WILL normally be considered taxable income to your beneficiaries, if you didn't pay income taxes on the funds in the account during your lifetime. Ideally, consult a good estate planning attorney for help in determining the best way to leave your assets to your desired beneficiaries. It's a complicated area.      ... Read More

The "spouse benefit" referred to by the quoted language is one-half of your former spouse's benefit, not his actual benefit amount. "Spouse benefit" means the benefit payable to a person's spouse (or former spouse, in this case). If your individual benefit under your record is higher than the spouse benefit payable under your former spouse's record, which is one-half his benefit, then you would only receive your individual benefit. So it sounds like you are getting the maximum amount you are entitled to.... Read More

In order for a person's Will to be made legally effective and actually allow the transfer of assets in the person's probate estate to the intended beneficiaries, it has to be admitted to probate in the appropriate county. In this case, if the aunt had her principal residence in Georgia, the probate court for the county where she had her principal residence is the appropriate county to start with. The Will has to have been admitted to probate and an Executor appointed by the court. There is also "filing for informational purposes only;" that does NOT appoint an executor. It's not clear what you mean when you say the Will has been filed briefly with the court. The Executor of the estate has to notify any potential unknown creditors by publishing a "Notice to Debtors and Creditors," and to clean up all outstanding items such as final income tax returns for the years the aunt was alive and pay her debts. The Executor also has to determine a proper fair market value for her probate assets as of the date of her death. Only once all debts, taxes, and expenses of the estate have been paid can any assets be distributed to the nephew under the Will. In order to transfer the property to the nephew, the Executor then has to execute a deed (which can be called an Executor's Deed, an Assent to Devise, or a Deed of Assent) to actually transfer the property to the nephew's name. Just having the nephew start living there and paying expenses does nothing except put him at risk for all kinds of problems. If the nephew wants to be able to keep this house, he needs to ensure that the estate is dealt with correctly. If he really has no funds, then he may be able to get some legal help through a legal services clinic. Some probate courts in Georgia (DeKalb and Fulton, and I think others) have programs operated through the courts themselves, where volunteer attorneys come and help with these kinds of issues. But in general, he may need to get an attorney to help him. It does not have to be expensive; many attorneys can provide help on an as-needed basis for fairly inexpensive fees.... Read More

A power of attorney ceases to have any effect immediately upon the death of the principal (the person who created it is the principal). In the case of your power of attorney, that means that no, your mother will not have any power to use the power of attorney after your death. If you want to ensure that your mother or someone else will have the ability to act after your death with the least possible amount of difficulty, then you need to have some additional estate planning in place. A Will is the bare minimum. A Will takes effect only AT your death, and the Will can authorize someone to act as the Executor of your estate. The appointed Executor would need to offer the Will for probate and get appointed in order to be able to act. If you want someone to be able to act more quickly, then you may want to use a trust--likely a revocable trust. You could be the Trustee of the revocable trust, perhaps with your mother as a Co-Trustee or successor Trustee if you want her to be able to act with regard to the trust even while you are still living and competent. If you die or become incapacitated, the successor Trustee or remaining Co-Trustee could then continue to act with regard to the trust without the need for your Will to be admitted to probate first. Please don't attempt estate planning yourself; consult an experienced estate planning attorney to find out more about what options you have and what plan may best suit your needs and goals.... Read More

If you are named as the POD beneficiary on your father's bank account, that account became yours at his death and did not become part of his estate. It's not even your responsibility to use it to pay estate related expenses or expenses related to his death: it's your money, not his. His probate estate assets are supposed to be used to pay for expenses relating to his death, his debts, and similar items. If your father was receiving nursing home Medicaid benefits before his death, there may be some ability for the state to come after the funds from the POD account, under an estate recovery program, because in Georgia the concept of estate recovery is being applied to assets other than strictly probate estate assets. And if he had income tax or other tax liens, then you may have some potential liability to turn over the assets to the tax department. But in general, as stated above, assets from a POD account which came to you under the POD designation are yours, and are not subject to paying estate debts or expenses.  ... Read More

Possibly. How easy a challenge would be to bring, and how likely to succeed it might be, depends on a whole lot of different factors. For example, a trust created for your second wife under your Will, which will have to be funded with probate assets after your death, is more susceptible to a challenge than an irrevocable trust which was fully funded by you during your lifetime and already exists. If you used a competent estate planning attorney, then you and the attorney should have discussed those factors and decided on a plan which met your goals in the manner which made you most comfortable. If you didn't use an estate planning attorney, or if your attorney really focuses on areas of law other than estate planning, then you may want to get a second opinion from an attorney who does focus primarily on estate planning.... Read More

The answer to this question depends very heavily on (1) how the trust is written and (2) how the beneficiary designation was set up. The term "living trust" usually means a revocable living trust, and the general rule is that assets held by or paid to a revocable living trust can be accessed to pay the debts of the trust's deceased creator. But if the trust was structured to protect life insurance benefits specifically, it might not make them subject to creditor claims. The trust also might not be a revocable trust - it could have been an irrevocable trust created during the creator's lifetime - that is also technically a living trust although not that's not the most common use of that term. An irrevocable trust usually would be designed to avoid creditors claims made against the deceased creator. In addition, if this is a Georgia decedent, the minor child may be able to use a year's support right to get around the creditors' claims even if the life insurance might otherwise be exposed, even though there's a living trust in place and not simply a probate estate. If you really want an answer, I suggest that you contact a good estate attorney, preferably one with some litigation experience, and see if they can review the trust and the beneficiary designation and see what the situation actually is. It's too fact-dependent a question to be answered in this kind of forum.... Read More

You don't have any options. Your father has them. There are ways to help protect an estate plan against the possible results of a challenge and thereby better ensure that the desired beneficiary receives the intended assets. These could include your father creating a revocable trust and transferring the property to the Trustee of the trust before he dies, which could help avoid delay caused by a potential Will contest, giving you the property now or selling it to you (if doing so won't create problems for your father), or adding you as a joint owner now. But he should not take any steps without the help of an experienced estate planning attorney, and, since he is the owner of the property, HE has to be the one to take any such steps. You can't control the property right now, and there's nothing you can do to protect your expected inheritance except to try to ensure your father understands the potential value of doing good, solid, estate planning.... Read More

Your mother should have dealt with the house as soon as possible after your stepfather died. His interest in the house may have become part of his probate estate at his death, depending on how the house was owned. That would happen even if no one opened a probate estate. If his name was on the deed, but he and your mother did not own the house as "joint tenants with rights of survivorship" (the deed has to say words like that or very similar), then it is very likely the case that his children now own shares in the house (for example, if this is a Georgia property, and he and your mother owned the house as "tenants in common," then your mother would own 1/2 + 1/6 of the property - her own half plus 1/3 of his half, and his children could own 4/6 of the property in equal shares.) If he and your mother owned the house as joint tenants (or, if it's not a Georgia property, they could have owned it as tenants by the entirety, which does not have to be stated on the deed, necessarily), then his interest would have transferred to her automatically. Before you move in and begin paying anything, you need to get a good probate attorney to help you figure out exactly who now owns interests in the house. If it does turn out to be all your mother's, you will still need to deal with her estate. Since she has debts, those will have to be dealt with. If they can all be dealt with without the house having to be sold to pay them, then you and your siblings (all other heirs, actually, which may not be just you and your siblings if any sibling predeceased your mother) could agree to let you and your wife take on the house. It will then need to be deeded from the estate to you. If your stepfather's interest in the house didn't pass to your mother 100% under the deed, however, then his children likely also own interests in the house and they will need to be dealt with in addition to your needing to deal with the probate estate for your mother. You will have to open a probate estate for her, however, either way. Get a good attorney; it may not be an easy job and title to real estate is too important to risk messing things up.... Read More

You do not have to have the consent of all of the heirs in order to have an administrator appointed for an intestate estate, although if you do you can make things easier and less costly by requesting a waiver of bond and the grant of certain powers as part of the Petition for Letters of Administration.  In general, heirs to an estate are not responsible for estate debts or estate administration expenses. However, if this is a Georgia house, then under Georgia law the heirs to an intestate (no Will) estate such as your mother's can become personally responsible for at least certain expenses which come up after the owner's death and which are directly related to ownership of the house. The court case which created that rule involved condominium association fees; it's not currently clear how far that would extend. It might help if you explain to Sister X that she's only costing herself money by delaying and not returning the Petition for Letters of Administration, and that she can be held personally responsible for a share of expenses related to the house if she does not sign the Petition and get it back to you. Once the Administrator has been appointed, the heirs are no longer responsible for paying expenses, however. At that point, the estate's other assets should be used to pay the expenses. If there aren't enough other estate assets, then the house should be sold as soon as possible, and any equity should be used to pay any unpaid estate debts and expenses at that point. Other heirs cannot prevent your sister from receiving her share of any remaining estate assets after the estate administration is completed just because they contributed assets to the estate. The heirs who do contribute assets can be repaid from the estate's assets before the assets are divided up, however. If the proposed Administrator is not already working with an estate attorney, please get one involved as soon as possible. A recalcitrant heir is bad news and makes the process much more difficult, and the Administrator should be very careful anyhow in order to avoid himself (or herself) becoming personally liable for estate-related debts or expenses by paying debts and expenses in the wrong order of priority, or distributing assets to heirs before all debts and expenses are paid in full first.... Read More

Why would you want to leave a life estate to your caregiver, and a remainder interest to your son? That's usually a red flag. That aside, and assuming that you have a legitimate and genuinely felt reason for wanting to reward your caregiver (I assume this is intended to take effect after your death and not during your lifetime), there are usually much better ways to do it than by giving the caretaker a life estate on your house. A life estate to be created at death would need to be provided for by either your Will or a trust you created during your lifetime (either a revocable trust or an irrevocable trust). You would need to ensure that you were the sole owner of 100% of the house during your lifetime, or that it was 100% owned by the Trustee of the trust, depending on the overall plan. The Executor or Trustee, after your death and after the estate or trust was properly administered, would then need to execute a deed which describes the life estate to be held by your caregiver and the remainder interest to be held by your son. Under a life estate, the caregiver would be responsible for 100% of the costs associated with owning the house: insurance, property taxes, maintenance, and repairs. Your son, as remainder interest holder, could sue the caregiver if the caregiver allowed the property to fall into disrepair or deliberately did things to damage the value of the property. The caregiver would not be able to borrow against the house - this could mean that the caregiver is unable to access the equity value of the house if needed to make repairs, and can be a problem. Upon the caregiver's death, your son (or any contingent remainder beneficiaries) would automatically become owner of 100% of the house. A life estate can be given somewhat more flexibility, but that just creates other issues. Disputes, and possibly even litigation, are almost certain to occur. A better way to reward a caregiver, if desired, is to have your estate plan provide a cash bequest for that person. If the house must be sold to fund the bequest, it can be. If your son really wants to own the house, he could even purchase the house from the estate if needed. Your son could then receive the rest of the assets (assuming he's the only other beneficiary). This way both get something soon after your death, your caregiver can use the cash bequest to buy a house, if desired, or for other purposes, without being locked into your house, and your son does not have to wait until the caregiver dies to receive the benefits of his interest in the house. You really should consult an experienced estate planning attorney for help in determining what you want to provide under your estate planning documents. Even if you decide to stick with a life estate, creating that interest properly, with a minimal number of problems, takes good legal work. It's not a do-it-yourself project.  ... Read More

Please accept my condolences on your loss. Unfortunately, if your mother resided in New York, then you will need to have a New York attorney assist you. You may want to try reposting this using your mother's location, rather than Georgia, to help you draw attention from attorneys in New York.... Read More