Georgia Trusts Legal Questions

Unfortunately, you need to get an estate litigation attorney to represent you, and fast. No, your half sister does not have the right to just go into your father's possessions and take things, and if your aunt who is the nominated Executor isn't taking appropriate actions to get the property back so that the estate can be administered properly then you may need to have a different Executor appointed. Keep in mind that you will be facing an uphill battle, but that you are the only one who can ensure that your interests are being protected. Best wishes to you and please accept my condolences on the loss of your father.... Read More

There are not standard fees throughout law firms, so in order to find out what any given firm or attorney will charge to update estate planning documents such as Wills you will need to contact the firm/attorney and ask them. Also, please be aware that there's not usually a standard fee for all Wills, for example: the complexity of the plan that is desired affects how long it takes to prepare any given set of documents, and therefore usually affects the price. And finally: it is not possible to compare work quality on a dollar basis. Very inexpensive firms often give little, if any, advice or planning help, and in a lot of cases the attorney may not even really focus on estate planning. That can mean that your Wills may not be worth even what you paid for them. Look for attorneys that focus largely on estate planning, and not on a lot of other areas (it's okay if the firm has more than one area, but you don't really want your Will done by an attorney who also tries to do real estate, bankruptcy, and divorces, for example). Best wishes to you.... Read More

This is a very interesting question.  Even if you can prove she deliberately did not continue paying premiums on the policies, does she have assets to satisfy any judgment you might get against her?  Your claim woudl be a breach of fiduciary duty, not negligence.  You  may have a problem with who has the right to file the lawsuit.  She owed your father a duty to act as he would have acted.  It might be a claim owned by your father's estate rather than you.  ... Read More

There is no public record for that. The best way to try to figure out what attorney a deceased person used is to look through the person's belongings to see if there is any information that shows that he or she paid an attorney, received documents from an attorney, or otherwise communicated with an attorney.   If you never received a copy of the Will but your sister claims that there is one, you are likely better off finding an estate litigation attorney (I do NOT do that work) and having them help you file a petition to force your sister to produce the Will. You can also seek to have yourself appointed as the administrator of the estate if your sister is claiming that there is a Will but not offering it for probate, you don't have to take her word that there is a Will. You should also call the probate court of the county where the person lived to see if there has been anything offered for probate, filed for safekeeping, or filed for informational purposes only. If there has been, you may be able to get a copy. Best wishes to you.... Read More

You will need to find an attorney in Texas if there is real estate there in your late husband's name. A Georgia attorney won't be able to help you, because the real estate is controlled by Texas law. If your late husband had a Will, it may need to be offered for an ancillary probate in Texas; if he didn't have a Will, then you may need to do an administration in Texas. Or, depending on Texas law, you may just need to deal with the real estate using the Letters Testamentary (if he had a Will) or Letters of Administration (if he didn't have a Will) issued by the probate court in Georgia (I assume he was a Georgia resident at his death). You will not be likely to find an attorney who will take a probate matter on a contingency basis. However, you can certainly ask any attorney that you contact about alternative fee structures or payment plans. In my firm, all work on probate matters like what you describe is hourly for actual time spent, plus full reimbursement of all costs incurred, and with a retainer (usually $4,000 or more) paid up front to the firm, with billed fees drawn from the retainer as they are generated each month. Best wishes to you.... Read More

You aren't asking a question, so I'm not sure what to tell you. Your mother, assuming your stepfather and she were both Georgia residents at the time of his death, had the right to file for year's support. Your stepbrother, assuming he was your stepfather's legal son, has the right to try to challenge the amount that your mother is seeking to have awarded to her. All your mother can do is try to prove that she really needs everything she's requesting. It does not matter what resources your stepbrother has, what matters in a challenged year's support claim are bascially only these issues: (1) was the person seeking to get year's support the deceased person's surviving spouse (or a surviving minor child)? (2) Was the decedent a resident of the state of Georgia at the time of death? (3) Were there assets that became part of the decedent's probate estate (note: this would NOT include life insurance proceeds, IRAs, or other assets that were paid directly to a beneficiary under a beneficiary designation, and it would NOT include assets that the decedent owned with another person as joint tenants, if the other owner survived)? (4) Did the person file the year's support petition on time (within no more than 2 years from the date of the decedent's death)? (5) Had the person seeking the year's support remarried (or turned 18, if a minor child) before filing the Petition? (6) How many other resources are available to the person seeking the year's support, and is the amount being requested really needed to allow the person to be supported for a year given her other available resources? Your mother needs to hire an experienced probate litigator if her year's support petition was filed on time and is being challenged. (Please note: I am NOT a litigator). Best wishes to you and to her.... Read More

If your son is being represented by an attorney appointed by a court, and if your brother is the executor of your father's estate, and if your father's Will is leaving something directly to your son (which appears from your question to be the case), then your brother was required to deal with your son's attorney, not with you. You are not your son's representative. Your brother only needs to discuss your interests with you, not your son's interests. As Executor, he is required to deal fairly and honestly with the beneficiaries; if a beneficiary is represented by an attorney, that generally includes communicating with the beneficiary's attorney. That being said, as an heir of your father and (maybe?) a beneficiary under his Will, you are also entitled to your own attorney. You may find it helpful to consult your own attorney in order to get a better idea of your rights and interests with regard to your father's estate and your brother's role as Executor and the related duties he has. Best wishes to you.... Read More

Please accept my condolences on the loss of your mother. As for your question: if your mother had her principal residence in Georgia, then the county where she had that residence is the county where you must offer her Will for probate, if it shows up, or where you must open her estate for administration if no Will can be found. You cannot do a Texas probate if she didn't live there. The fact that she was visiting you there does not matter. Now, if you believe that she had changed her principal residence to Texas or another state other than Georgia, then the fact that she owns the house here does not mean you have to do the probate here. In short, a critical question is where your mother had her principal residence and whether she had changed it before her death. An experienced probate attorney should be able to help you answer that question, but you look at things like where she filed her tax returns, where her driver's license was issued, where she voted, where she had most of her doctors and other service providers, etc. However, if you find an experienced probate attorney here, that attorney should be able to work with you to get the estate opened and you appointed as Executor or Administrator with very little need for you to actually travel to Georgia. I, personally, have worked with a number of different out-of-state clients on Georgia probate matters. It's not usually that big an issue. So, find an attorney who works in the county where your mother had her principal residence, schedule a consultation (by phone if needed), and get the attorney to help you figure out the next steps. Best wishes to you.... Read More

There have not been any changes to the inheritance laws in Georgia for a very long time, so I am not sure if your father was a resident of Georgia or some other state. I am licensed in Georgia, and this answer will only be correct if your father had his principal residence in Georgia at the time of his death. If you were adopted legally by your father, you are treated the same as any biological child he may have had: in other words, once he adopted you, you became his child for all purposes. If your father was married and had no Will, then his spouse and children would divide the remaining probate estate assets (after all debts, taxes, and expenses are paid from the assets). The spouse and children each get an equal share, if there are only 1 or 2 children. If there are more than 2 children, the spouse gets 1/3, and each child gets an equal share of the other 2/3. If a child died before your father, that child's children get that child's share. If your father had a bank account in his name and there are no joint owners or payable on death beneficiaries listed, then his estate will likely need to be opened and an Executor (if he had a Will) or Administrator (if he didn't have a Will) appointed. The Executor or Administrator will then be able to access the bank account, along with any other assets your father owned in his own name that do not have beneficiary designations on them. As for something like a 401(k) account, those have a beneficiary designation, either one your father created intentionally or a default provision, if he didn't create one. You have to contact the plan administrator and find out what the beneficiary designation says. The beneficiary designation will control those assets, and they will not become part of your father's probate estate unless the beneficiary is his estate. Ideally, get a good probate attorney. You need to figure out the exact situation to know your rights and options. That's not what this forum allows. Best wishes to you.... Read More

Please accept my condolences on your loss. It does sound like you are likely the only heir. One question is whether or not your brother had a Will. If he had a Will, then it will likely need to be offered for probate. If he didn't, you will likely need to file a Petition for Letters of Administration. However, before you rush into this on your own, please consider having an experienced probate attorney sit down with you to go over as much as you know about your brother's entire situation. It may be that opening the estate would just expose you to liability risk without much payoff, if he has significant debts. In addition, an attorney's help can make the whole probate and administration process as easy and inexpensive as possible; if you don't have that help you can end up costing yourself more time and money than you might have had to pay otherwise. You might also end up making mistakes that can result in your becoming personally responsible for his debts. If you think you really can't afford an attorney, then at least check with the probate court that would have jurisdiction over your brother's estate: they may have a probate information center staffed by volunteer attorneys that can provide at least some help. One other thing: if the only significant asset in your brother's estate is likely to be the Social Security claim, you may also be able to collect that directly from Social Security as his heir, without having to open the estate. You will need to look into that possibility. Again, having an attorney may help. Best wishes to you.... Read More

There is no way to answer your question based on the information you provided. For one thing, you don't discuss what kind of trust you're looking to put the money into or who created the trust. It may be that you should not put ANY money into the trust in question, ever (if, for example, someone else set up an irrevocable trust for your benefit with their money). It may be that you could have simply deposited the check straight into the trust in the first place, instead of first having to put it into a separate account (if, for example, it is a revocable trust that you created for your own benefit). And there is also the factor about how long you should wait to be sure the deposited check clears the bank, but that question is completely unrelated to whether or not the money should eventually be moved into a trust account.... Read More

There is no way to answer this question in this forum; there's way too much information that would need to be reviewed by the attorney. But the short answer is "Maybe" the disclosure would be sufficient to start the statute of limitations running. Unfortunately, for a better answer, you will need to consult an actual attorney in person.... Read More

You need to ensure that the estate has been administered properly before you transfer the house to yourself, including paying all debts. If the house has no mortgage or other loan associated with it, you should then be able to prepare an Administrator's Deed to transfer the house to yourself, as the heir/beneficiary of the estate. Please note: you should NOT use a quit claim deed, a warranty deed, or a limited warranty deed, as none of these are appropriate for a transfer from an estate to a beneficiary. I very strongly recommend that you get either an experienced probate attorney or a real estate attorney who has a lot of probate-related experience to help you prepare and file the correct deed. If the house is subject to a mortgage, credit line, or other debt, you will need to have the administrator's deed note the existence of any security deeds that secure the loans. You will then also need to get all of those loans paid off in full. You may have to do a refinance of the existing debt if you are not already a borrower of the existing loan. That is a very tricky process and you may have to talk to more than one potential lender to find someone who will take the trouble to understand the situation and help you get the refinance done. It's not the same as a normal refinance. Best wishes to you.... Read More

As long as your grandmother still has enough mental competency to make a new Power of Attorney, then she is free to do so at any time. And, if there's some guy that she doesn't remember who claims that he's her Power of Attorney agent, then she may well need to make a new one as soon as possible, and to let everyone she may have contact with know that they should not honor the document that he is presenting. At that point, if she makes a new one in favor of your dad, the other person will have to try to prove that she validly appointed him and that she does not have the capacity to make a new one. If she does not currently have enough competency to make a new Power of Attorney, then your father may need to seek to have himself appointed as her conservator and guardian (in Georgia, conservator has power over someone's financial and economic affairs while guardian has power over health care issues) and to have that existing Power of Attorney revoked. Your grandmother (or your father, if needed) should consult a good estate planning attorney as soon as possible.... Read More

Good question.  You can name the trust in your Wills (Smith Family Trust, for example) and not fund it, and then refer to that name, adding the detail that is it a testamentary trust (trust created by a Will).  For investment assets, life insurance, etc. you can either name the trust as a contingent beneficiary or name your estate and it will be directed to the trust.  Naming the trust directly avoids the assets having to go through the Will and hence the probate process. Naming a trust as a beneficiary of retirement funds is a bit more complicated.  Because a trust is not a person, there is no lifetime over which benefits will be paid.  As a result, the benefits are paid to the trust in full over five years.  This is true for naming estates as beneficiaries of retirement funds as well.  There are two better options:  have an attorney write the trust so that it is a "see-through trust" that conforms with certain IRS regulations that allow it to collect and pay retirement benefits over a trust beneficiary's lifetime, or name your daughter as the contingent beneficiary for retirement funds.  Both options allow your daughter's lifetime to be used to maximize the tax benefits of the retirement fund, although only paying them to a trust can prevent your daughter from withdrawing retirement funds early (if you include such restrictions in the trust language.)   ... Read More

Life estates are very difficult to give general advice about.  They derive from language contained in a will. Rarely is one life estate just like another. You cannot give away life estate. They exist for your life and generally only for you to reside in a home. If your child is the residuary beneficiary of your life estate, then giving the life estate to your child will unify the deed and allow the child to own the home in fee simple. This will result in the child being able to do whatever she wants with the home. Of course, you then have no additional rights to the home and can be evicted by your child. Without reading the language that created the life estate, it is hard to give complete advice about this situation.... Read More

If your mother's sister-in-law had a Will that was admitted to probate, then the best way to find out what it says is to contact the probate court for the county where she had her main residence at the time of her death, and ask if there is a file for her estate. You will likely need to give the court the full name and date of death for the sister-in-law. If there is a file, you can request a copy of it. The court may be able to tell you how to request a copy by mail, or you may be able to go in person and request it. There will be a fee, but it's not a whole lot of money. I would suspect that if your mother were a beneficiary under a Will of a person who passed away in 2011, she might have heard something by now. However, it certainly doesn't hurt to try to take a look and see if there is a Will. Best wishes and happy holidays to you and your family.... Read More

This question is too complicated to answer with the information you provided.  I assume your brother divorced his wife.  The divorce agreement called for your husband to take over the house and to pay his ex-wife some money.  She was to sign over her portion of the house.  Somewhere after the divorce, things fell apart and this never happened.  If this sounds familiar, then the outcome of who owns the home is completely dependent on exactly how the divorce agreement is worded.... Read More

If you have a CD, it is issued by a bank. The CD is presumed to be valid unless the issuing bank can prove otherwise.  Therefore, you have an IOU from a bank that the bank must pay absent proof of payment to your father.  The burden is on the bank to prove payment, not on you to prove nonpayment.   ... Read More

Your Florida trust did not become invalid just because you moved to Georgia. However, due to differences between the laws of Georgia and Florida (Georgia allows less notice to beneficiaries, for example), the trust may now be unduly restrictive. In addition, because you state that many things have changed since you executed the trust in 2005, it's likely that you may want to make other changes. So, it's a good idea to have someone review the trust and discuss your current situation and desires, and see what changes are desirable or necessary. Depending on what kind of trust you have, you may be able to amend the trust by keeping the original name and date (so you don't have to retitle assets that you may already own in the trust) and doing a whole new trust agreement. That's often the most efficient way to handle a major trust revision. If you have an irrevocable trust, however, then you may be limited in what, if any, changes you can make. In addition, if you have a type of revocable trust often called a joint trust (because it has more than one trustor, grantor, or settlor), you may be better off getting rid of it and doing separate revocable trusts instead. At my firm, we do not recommend joint trusts because they don't work as well in Georgia as in some other states, and they create a lot of tax and other issues that can be avoided with separate trusts. Best wishes to you.  ... Read More

If you changed your principal residence from California to Georgia, it is a good idea to update your revocable trust, your Will, your power of attorney, and any health care related documents. It may not be absolutely necessary; Georgia will generally recognize the documents as valid as long as they were valid under California law. However, due to differences between the laws of the two states, they may not work as well as they should. It's also a good idea to have someone review the plan periodically, to help ensure that you have the right documents in place and that you can make any needed or desired changes. To begin, find a good estate planning attorney and contact the attorney's office to schedule an estate planning consultation. Many attorneys offer the estate planning consultation free of charge and free of obligation. After you meet with the attorney, you should have a better idea of what may be needed and what that will cost.... Read More

Unfortunately, it is not possible for anyone to tell you what rights you may have with regard to the home based on the information you've provided in your question. If your grandmother had a Will that left the house to you outright, and if her estate was properly administered, then it should be your home and that should be the end of the story. However, I suspect that isn't what happened. If the house was not specifically left to you and it was never distributed to you with a deed from your grandmother's estate to you, then you may not have any rights. Just because the family asks you to move into the home to take care of your uncle and you do so doesn't mean you have any rights with regard to the house itself. Promises made with regard to real estate have to be made in writing to be legally enforceable, in general, and if you don't have something in writing that said you would be given the house by the person(s) who were legally entitled to i in exchange for performing specific tasks, then you may not have anything enforceable at all. You really do need to actually have a consultation with an attorney who can help you figure out your actual situation. There's just no other way for anyone to be able to understand what is going on. This forum is too limited for actual legal advice regarding your specific situation to be given.... Read More