Georgia Trusts Legal Questions

Unfortunately, if your stepmother died without a Will, and she was the owner of the house, you have no entitlement to it unless she had legally adopted you before her death (in which case, she would be your mother, not your stepmother). If your brother is your stepmother's child through either birth or adoption, then he might have some entitlement to it. But if she was just the stepmother of both you and your brother, then her heirs are now the ones who are entitled to the house. Alternatively, if she had a Will done before the new, unsigned one was drawn up, then that one may still be in effect. But unless you are the beneficiaries under that Will, again you would have no entitlement to her estate. If a person has no Will in place at death, her heirs are the ones who receive any assets left in her probate estate after all debts, administrative expenses, funeral expenses, etc. are paid. "Heirs," in Georgia, would be a surviving spouse, if there is one, and children (plus descendants of any deceased children) if the person had any children. However, stepchildren who were not legally adopted by the deceased person are NOT consider her children for this purpose. If she had no spouse and no descendants who survive her, then her parent or parents are her heirs. If neither of her parents survived her, her siblings and their descendants are next in line. So, unless you received some interest in the house from your father at his death, or unless you were listed on the deed to the house as joint tenants with your stepmother, you very well have no legal way to keep the house other than to purchase it from her estate. You need to figure out who is in charge of her estate and work with them. If no one has opened an estate, then you need to figure out if you can and should do so. Otherwise, you'd probably better find a new place to live, soon. I'm sorry to be the bearer of bad news. A consultation with a probate attorney who can see the actual facts and documents might help you, but might not. Best wishes to you.... Read More

An attorney's obligation is to his client.  The lawyer and the client are free to enter into a fee arrangement that provides for the attorney to be paid from proceeds received from the estate and remit the balance to his client. The remaining issues you raise about the client are issues between him and his lawyer.... Read More

Whether a marital trust must be included in the surviving spouse's estate depends on a couple of factors, including (1) how the trust is set up and (2) whether a marital deduction was received for the value of the assets that went into the trust when it was originally funded. I can't answer that based on the information you've provided. Just going by the names you've given, I would guess there may have been a marital deduction taken for 1 and 3, and maybe not one for 2 (the GST Exempt Non-Qualifying trust). But I would need to know a whole lot more information before I could say that for sure. If a marital deduction against gift or estate taxes was taken when a trust was created, then the assets in it will be includible in the spouse/beneficiary's estate at her death. If no marital deduction was taken, then whether the trust assets will be includible in the spouse/beneficiary's estate or not depends on what rights the spouse/beneficiary had at death or during life. If the spouse/beneficiary had what is called a general power of appointment with regard to the trust assets, which can arise in a variety of ways, then it will be includible even if no marital deduction was taken. If there is not a general power of appointment held by the spouse/beneficiary, however, then there should be no inclusion if there was no marital deduction, but if there was one, then there will likely be inclusion. The best way to be sure is to have the whole situation reviewed by a good attorney.... Read More

Please accept my condolences on your loss. Unfortunately, while your friend may have intended for you to be able to cash the check he gave you in the event of his death, it is very likely that his bank account was frozen when he died. In that case, if you deposit or try to cash the check, it may bounce. If you are pretty certain that the check was intended to be a gift to you, you may be able to legally cash the check even shortly after his death, but if his account has been frozen you are really pursuing a claim against the estate at this point and not a gift. Whether that claim is legally enforceable is another question. If you try depositing the check, I would assume that it will bounce and be prepared to incur a fee from your bank. I also would NOT write any checks against the deposited amount until you are sure it will clear. The safer option would likely be to write to the attorney for the estate or the executor directly, if you know who that is. Include a copy of the check (not the check itself) and state that you believed it to be a gift which you unfortunately were unable to cash before your friend's death. State that you are owed the money by the estate and are making your claim for the amount of the check known. I would send that by certified mail, return receipt requested (keep the receipt from the post office). I would also keep a copy of everything you send. It does not guarantee you'll get anything. But at least you will have put the estate on notice that you believe you are owed money. If your claim is denied and you want to pursue it, you may need to hire an attorney to help you. I don't know that I would recommend you spend that money, however. In the meantime, it would be best if you found another way to pay your rent. I hope you are able to get things worked out.... Read More

Your mother may have the ability to make a claim for year's support (assuming your stepfather had his principal residence in Georgia at his death-if not, you'd need to check that state's laws to determine what rights your mother may have), even if she was excluded from your stepfather's Will. I assume that the house was only in your stepfather's name; if your mother's name is actually on the deed to the property, then she already has that interest. She would also already have any assets that might have been payable to her under a beneficiary designation or a right of survivorship (such as if they had a joint bank account). If this is a Georgia estate, then she's not necessarily entitled to any specific share or anything at all, but a claim for year's support should be an option unless she waived it in a pre- or post-nuptial agreement. She must file within no more than 2 years after your stepfather died; sooner is better than later, however. Find her a very experienced estate litigation attorney and get started.... Read More

No, you should not be able to deposit the check into the joint account, because that became your account at your father's death and his estate has no interest in it, while the check belongs to his estate. If there really aren't any other assets, and if you are the only heir, you can try to have the landlord make the check out to you. Otherwise, you may need to do one of two things (assuming your father had his principal residence in Georgia--if not, this may not be the correct answer): either file a Petition for Order Declaring No Administration Necessary asking that the check (and any other assets your father owned, such as his personal possessions) be distributed to you, or open a probate estate (either as Administrator if there was no Will or as Executor if there was one) and deal with the check that way. I realize that this isn't a great answer, but unfortunately this sort of situation happens all the time.... Read More

I am going to assume your father had his principal residence in Georgia. If not, this answer may not be correct. If your father had a Will and the Will was offered for probate, then you can obtain a copy of the probate court's entire file, which would include a copy of the Will. You would call the probate court of the county where he had his principal residence and ask them if they have a file for him. If there was no Will, then the property would have passed to his heirs in accordance with state law, except to the extent that a year's support award applied to transfer it elsewhere. If he owned the property with someone else as joint tenants, then his interest in the property automatically transferred to the other owner at his death. You can determine how he owned the property by checking the records of the Superior Court in the county where the real estate is actually located, searching under your father's name.... Read More

You may need to get yourself appointed as your mother's conservator. As conservator, you can then go after your sister for fraud or theft on your mother's behalf. You would seek the conservatorship in the probate court where your mother lives. However, unfortunately, without a competent attorney, you have a very long, hard, road ahead of you and may not be successful. Try calling attorneys who do elder law other than the ones you already called - it's not always $50,000 to handle this kind of matter, although it certainly isn't inexpensive, either. One other option is to try to contact the white collar crime or elder financial abuse department of your county's District Attorney's office, or even simply the police. Best wishes to you and your mother, and it sounds like she is lucky to have you looking out for her.... Read More

A QTIP-style trust can be created before a couple gets married, but it will not qualify for the marital deduction against gift taxes unless it is not funded until after the marriage is final. The transfer to a QTIP trust, in other words, will not accomplish what it's normally supposed to accomplish unless the beneficiary of the QTIP transfer is actually the spouse of the transferor. I'm not sure what you mean by your reference to "a QTIP trust regarding [your] fiance's retirement assets," however. The QTIP reference does not make sense in this context, and I'm not sure what you are thinking would happen. If you are not comfortable signing a prenup, then that's your decision, but a QTIP trust does not substitute for a prenuptial agreement in any way, shape, or form. You may want to have a consultation with a good family law attorney to discuss your concerns about the prenup and what your ideas with regard to the retirement account assets are. An estate planning consultation may also be helpful. Best wishes on your pending marriage.... Read More

You should have received a copy of the entire petition, so I hope that's what you were sent, and not just the pages you need to sign or initial. I am also going to assume that your father had his primary residence in Georgia and his estate is being opened in a Georgia county; if not, my answer will likely not be correct. If you don't sign, your mother will still be able to file the Petition and will likely still be appointed as the Administrator unless you challenge her Petition and are successful. However, when she files without your signature, you will be served with notice. If you live in the state where the estate is being opened, you'll likely be served in person, with a sheriff showing up at your door. If you live out of state, you'll likely be served by certified mail. Your mother, if appointed as Administrator, will have to post a bond and file an inventory and periodic reports with the probate court, where if all heirs had consented she could have the bond, inventory, and reports to the court waived (she'd still need to provide information about the estate to the other heirs). You should not sign anything without consulting an attorney or having a complete copy of any Petition. Even if you decide not to sign the Petition, you have rights to the estate's assets as an heir, and you will need to decide whether you want to protect those rights or not. Your mother may file a claim for year's support, which could defeat your interest in the estate if you don't challenge it. Finally, even if you decide that you don't want anything from your father's estate, if you are willing to sign you can make things easier on your mother and less costly and time-consuming. If you don't sign, it means the estate administration process will be more difficult than would have been necessary if you'd been willing to consent to certain things and sign the documents. But it is up to you what you want to do. No one can make you sign or even respond if you don't want to.... Read More

No, a power of attorney ceases to have any validity immediately upon the death of the principal (the person who made the power of attorney). After that point, only a properly appointed Executor (if there is a Will) or Administrator (if there is no Will) has any power to handle the deceased person's probate assets. Assets which passed under a beneficiary designation or a right of survivorship belong to the beneficiary or surviving joint owner, and can only be controlled by those people (or their attorneys-in-fact under their own powers of attorney).... Read More

I hate to tell you this, but it sounds like you don't own your house any more. And you have a complete mess on your hands, which you cannot fix by simply signing over your daughters' interests in your house to yourself. Your minor children should NEVER, under any circumstances, have been put on the deed to your home. Having minor children own real estate is a disaster - you can't get a loan if you need to, you likely can't sell the house and use the proceeds to invest in another house, your daughters may not be able to get financial aid for college without problems, etc. But apparently that happened at some point, so now you have to figure out how to deal with that. It sounds like you transferred your interest in the house to your father in an attempt to protect it from a possible claim against you. If you had filed bankruptcy, the creditor with the claim (and any other creditors you had) would likely have been able to have that transfer undone as a "fraudulent transfer," because your intent was to defeat their ability to satisfy their claims against you. You also made a taxable gift to him when you signed over the property. If I understand your situation correctly, your father now holds a life estate in 1/3 of your house (the 1/3 that you owned under the deed which named both you and your 2 daughters as owners), and your daughters hold the remainder interest in that 1/3, as well as owning the other 2/3 outright. You don't own any interest at all, in other words. So if you die, nothing happens. If your father dies, your daughters own the house, assuming they both survive him. You cannot sign over the asset owned by your daughters without having been appointed as a conservator for them; you don't have the legal right to do that because it hurts their interest. So they should still own their interests. You only signed over your own interest. I would recommend that you find a good real estate attorney and have that attorney review the existing chain of title to see exactly what the situation actually is and who owns what. If your father holds a life estate in 1/3 of the property, with a remainder in your daughters, and your daughters own the other 2/3, as it sounds like may be the case, you may be able to take some steps to at least have your father transfer his interest back to you so you have a life estate in part of the house rather than him. You may also find out you have a different situation than it sounds like you may. But without actually seeing the underlying real estate records, no one will be able to tell what you have. And if you try to fix this yourself, you will likely make any problems you already have worse, so please don't try to self-help. You may also need to see an attorney who can deal with guardianships and conservatorships, as well as an estate planning attorney, to help get it all worked out decently. Best wishes to you. I hope you are able to get this resolved with a reasonably good result for you and your daughters.  ... Read More

I am not entirely sure I understand the situation, because I'm not sure what you mean when you say that the birth mother left the adopted child a trust which was set up by the aunt. I am going to assume that you mean the child's birth mother's Will provided for a trust to be created by the child, with a relative of the birth mother (perhaps her sister) nominated as the Trustee of the trust. (A Trustee does not set up a trust, they manage a trust which was created by a trust grantor or testator, if the trust is created by a Will). The child would not have been considered a legal heir of the birth mother after the adoption was completed, and the "aunt," assuming she is a relative of the birth mother and not the adoptive parents, is not legally related to the child. However, the birth mother was free to leave assets in trust for the child even though they were not legally related, and she was also free to select a trustee who she knew and trusted, without regard to the preferences of the child's parents. So the only real question here is whether the Trustee of that trust can be changed now to someone the child's parents would prefer. The adoption really hasn't got anything to do with it. Neither does the biological relationship. If the trust provides for a way that the Trustee can be changed, then that will normally control. If it doesn't, then you have to look to the law of the state which controls the trust (if the trust was established by a Georgia resident's Will and set up to use Georgia law, that may be Georgia) to see whether and how a trustee can be changed. The child's parents may be able to take action on behalf of the child, if the child is under 18 years old, but the actions they can take are going to be limited to the actions permitted by the trust or by applicable law. Without reviewing the trust and knowing what law applies, I can't tell you whether there's any ability for the trustee to be changed easily. I can tell you that, in our firm's Wills, trustee changes are usually limited to cases where the trustee is misbehaving. It's the birth mother's Will; her wishes as to who should serve as the trustee and who she wanted to benefit are the important ones, not the wishes of the trust beneficiary or the beneficiary's parents. But the parents should seek the review and advice of a good trust attorney if they want a more specific answer as to what can be done in this case.  ... Read More

In order to transfer your house here to a trust, you (and your wife, if she also is listed on the current deed to the house) will both need to sign a deed transferring the house from yourselves to the Trustee of the Trust. The Trustee MUST be named (by actual legal name) in the deed, using this sort of designation: "XYZ, as Trustee or successor Trustee(s) of The Joe and Mary Doe Revocable Trust U/A dated 1/1/2014." A deed which simply names the trust itself as transferee is not valid under Georgia law. Ideally, if you have any title insurance on the house, you also should do either a Warranty Deed or a Limited Warranty Deed, and NOT a quit claim deed, to transfer the house to the Trustee. A quit claim deed can end up costing you the benefits of any title insurance you may have in place. I urge you to consult an estate planning attorney and not simply try to prepare the deed yourself. If you've moved here from California, there are probably a lot of updates which should ideally be made to your existing estate planning documents to ensure that they will work as well as possible. Georgia and California are very different. Just for one example, you may not really even need to keep the trust, since Georgia probate is much less difficult and less expensive than California probate and, unless there are other concerns, you may be able to simplify things by eliminating the trust instead of transferring your home to it.  ... Read More

If you signed a quit claim deed (note: it's quit claim, not quick claim) signing your interest in your mother's home over to your sister (or to her son), then you likely can't get your property back. You made a gift. If you have something in writing that shows your sister promising to pay you for your interest, then you may have a breach-of-contract case that could allow you to get paid (or at least get a claim against your sister), but you probably can't get the property back. I wish you had asked this questions before you signed any deed. I would have told you not to sign the deed unless and until you had a check in hand for the full value of your interest, because the transfer of real estate is not generally something you can undo easily.... Read More

Theft is theft, so yes, if your brother stole from your trust then he can be held criminally responsible. He could also be held personally responsible for the stolen assets, plus damages, in civil court, for breaching his fiduciary duty as a Trustee. You will need to contact the police about a criminal case, and an experienced estate and trust litigation attorney for a civil case. Best wishes to you- that's a terrible thing to have happened. It goes to show why selecting a Trustee can be such a critical issue.... Read More

Please accept my condolences on the loss of your father. Unfortunately, no, your mother should not deposit his inheritance into a joint account which she held with him, as upon his death that account became 100% hers and his money should no longer be deposited into it. Your mother should take steps to open your father's probate estate, either by offering his Will for probate or seeking the appointment of an Administrator if he didn't have a Will. The estate will then receive the inheritance your father was to receive. Your mother may want to consider making a year's support claim, especially if there is no Will, but the check to your father should be deposited into his estate's account, and the estate should be properly administered to help ensure that any debts he may have had can be put to rest correctly and that the remaining inheritance assets, along with any other probate assets which remain after the estate has been fully administered, are distributed to the correct beneficiaries in the correct proportions.... Read More

Your husband may be trying to discourage you from hyphenating your name, but under the law there is no penalty at all for doing so. As for what happens to your husband's assets in the event of his death, your name has nothing to do with it. What will happen will depend on whether your husband has a valid Will and/or other valid estate planning documents in place (such as revocable or irrevocable trusts), what those documents say, how his assets are owned, and how any beneficiary designations are set up. Assuming that your husband has his principal residence in Georgia at the time of his death, if you and his children all survive him, then you and the children would all be his heirs. If assets become part of his "probate estate," then if he has no valid Will, you and the children will split the probate assets (after any debts, administrative expenses, and taxes due at his death are paid), except to the extent you (or any minor child) is able to make a successful claim for a year's support. If there are still only 3 children, you would get a third (plus any year's support award, if you get one -note: the year's support is not a set amount and not guaranteed if the children challenge your request), and the children would divid the other 2/3 between them equally. If your husband has a valid Will, then his probate estate will be distributed in whatever manner the Will says it gets distributed. He could try to disinherit you completely, if he wanted to. Assets which do NOT become part of the probate estate would include: (1) any assets your husband owns jointly with you or anyone else as "joint tenants" - usually, a joint bank or brokerage is owned as joint tenants but real estate is only owned that way if the deed SAYS "joint tenants," "with rights of survivorship," or something very similar on it; and (2) any assets which pass to you or someone else at his death under a beneficiary designation - usually, life insurance, IRAs, 401(k) accounts, and other retirement accounts have beneficiary designations - or a "payable on death" or "transfer on death" designation. Note, however, if your husband's estate IS the designated beneficiary of an asset, then that asset WILL become part of his probate estate. But in general, a right of survivorship will result in that asset passing outright to the surviving joint owner at the first owner's death, so that asset would not become part of the first owner's probate estate. Similarly, if an individual or a trust is designated as the beneficiary under any type of beneficiary designation, that asset does not become part of the owner's probate estate. If your husband WANTS to have his assets divided among you and his children, he can, and if he does nothing, his probate estate will be divided that way. But that has nothing to do with what your name is, except to the extent, if any, that he decides to use a different estate plan if you hyphenate than he would if you didn't hyphenate.... Read More

Dear Georgia, My condolences on the loss of your sister.  I practice in illinois so I'll be sharing a general overview from the perspective of IL law, so please consult with an attorney in your home state to ensure the exact specifics of GA law. What the insurance company seem to be asking for is an "order for summary administration."  Such an order is obtained by you filing a petition for summary distribution for such in at the clerk's office at the county circuit court in which your sister was a resident. Short Version: 1) You file a Petition & get a hearing date; 2) You publish notice of the hearing date; 3) Hearing is held & at conclusion the Court rules and issues you an Order for Summary Administration....or not; 4) You take the Order to the bank and collect. Long Version:  Summary distribution is used ONLY when there is a small estate involved.  The petition should state that the value of the estate (real and personal property does not exceed $100,000 (in IL) - this amount maybe lower or higher in your sister's jurisdiction; there is no unpaid claims against the estate OR all of your sister's creditors known to you as petitioner are listed on the petition w/the amounts owed listed; no person is entitled to a surviving spouse or child's award or if such is allowable, those individual's names and amounts due are listed; all of your sisters heirs have consented in writing to summary distribution; each distributee gives bond in the value of his/her distributive share....this one is only applicable if your sister left children and if there are no children, it's applicable if there are more siblings than just you and if one or both of your sisters parents are living....The distribution would be determined by intestacy distribution laws for your state); you as petitioner are required to publish notice for 3 successive weeks in the same county in which the petition is filed informing all persons of death of the decedent (your sister herein), that you've filed for summary administration and of the date, time and place of the hearing on the petition you have filed. At the hearing, the court may determine the rights of the claimants and other persons interested in the estate, direct payment of claims and distribution of the estate on summary distribution and excuse the issuance of Letters of Office or revoke the letters which have been issued....and subsequently issue an Order od Summary Administration.....which you then take to the insurance company.  Inquire if your state offers what's called a "Small Estate Affidavit" and if your sister's estate qualifies AND if the bank would accept such...it would be faster and more economical for you.  Best wishes to you.  Hope the information was helpful. ... Read More

As mentioned in my prior answer, if the tax-deferred account is an IRA, and not a 401(k), and if you were designated as the beneficiary on the IRA account, then no, your sister's surviving spouse would not normally have any rights with regard to the IRA account at her death (assuming your sister was a Georgia resident at the time of her death).... Read More

My condolences to you on your loss. If your sister designated you as the beneficiary of her 401(k) account, but she was married, her husband would need to consent to that beneficiary designation. For an IRA account, that would be different. However, a 401(k) account is controlled by a set of federal laws known as "ERISA." ERISA says that a participant's spouse (a participant is the person who the 401k account belongs to) must be the beneficiary of the account unless the spouse consents to another beneficiary designation. Therefore, your sister's husband may end up with rights to the account, even if you are named as the beneficiary. You should contact the plan administrator for the 401(k) account. You may also want to contact your own attorney, and have the attorney review any documents you may have relating to the account. It may be that your sister rolled her 401(k) over into an IRA after all, in which case the ERISA rules should no longer apply to the beneficiary designation. But without being able to see all the relevant documents, it would be impossible for me to know exactly what you have.... Read More

The DeKalb County Probate Court is where matters relating to a decedent's estate are handled. However, there is no such thing as a "small estate affidavit" in Georgia. If the decedent had a Will, the Will must be admitted to probate and an Executor appointed in order to deal with the estate. If the decedent did not have a Will, then it may be possible (if all heirs and creditors agree) for a Petition for No Administration Necessary to be filed, instead of opening an estate and having an Administrator appointed. However, a Petition for No Administration Necessary is not limited to smaller estates, and the need to offer a Will for probate and have an Executor appointed cannot be avoided if the decedent had a Will and there are any probate assets. I strongly recommend that you consult an experienced probate attorney who is licensed in Georgia for help in determining the best and most cost-effective way to deal with the estate. You are not required to have an attorney for Georgia probate and estate administrations, but the advice of a good attorney is generally worth the cost. There are a lot of potential pitfalls and confusing issues out there, and if you don't avoid them they can end up costing more time and money than you would have spent on good legal advice.... Read More