Georgia Probate Legal Questions

You should be able to try to challenge the Will, if you haven't already signed something consenting to have that purportedly bad Will admitted to probate. You might also be able to file a year's support claim, if your husband and you both live in Georgia. But if you want to do anything, you should contact an estate litigation attorney as soon as you possibly can. Timing can be very strict in probate matters, and your deadlines to file objections can be very short. Be warned: litigation can be very expensive, too, and most estate litigation attorneys do not work on contingency. You also aren't guaranteed favorable results. You may also find out that the debt you mention is an obligation of the estate, and if that is the case you may at least have some recourse there. Best wishes to you. It sounds like a terrible situation, and I'm sorry that you're having to deal with all that on top of the loss of your husband.... Read Answer

If she doesn't go through probate, then by definition she has not been appointed as the administrator of your dad's estate. Only the probate court can appoint an administrator. If she is doing things that she legally needs to be appointed administrator to do, then she is in violation of state law, and you can have the probate court force her to account for her actions. There is another possibility, however: that most of your dad's assets passed at his death in a way that means no administrator is needed, because they didn't become part of his probate estate, and that the rest of the assets are things like personal possessions that don't require a formal title change or a car, where there is an exception if there won't be a probate estate opened. If your dad and "she" owned most assets in a particular form of joint ownership, called "joint tenants," then all of those assets would have passed to her, as the surviving joint owner, immediately at your dad's death. Neither you nor any other heir to the estate would have any right to those assets. In addition, assets that your dad may have owned in his own name, like an IRA or a life insurance policy, or even bank and brokerage accounts other than IRAs, may have passed to her under a beneficiary designation. In that case again, the estate and his other heirs would have no interest in those assets and no probate would be needed for her to deal with those. If you think that there may be something going on that is incorrect, you can petition the probate court to be appointed as administrator yourself. You can also petition to have her called to account for any probate assets that there may be. But it is possible that there may not be a lot of probate assets. Unfortunately, it's not always possible to tell before you open the estate. If you decide to proceed with anything, you really should hire an attorney. It costs money, but it can also save a lot of extra expense and problems that you might run into if you try to do it without an attorney.... Read Answer

You would have to be notified if someone sought to be appointed as Administrator of your dad's estate, under Georgia law, as one of his heirs. You can also contact the probate court for the county in which he had his principal residence (or any other counties that something might have been filed in), and ask whether anything as been filed.... Read Answer

If you offer the Will for Probate in Solemn Form (which is the best one to use), then you will have to at least try to notify your sister. However, if she is really not findable, then you may be able to try notice by publication. The Court may also require you to hire an heir finder service. If you offer the Will for Probate in Common form, then you don't have to provide her with notice, but she will have 4 years to come back and try to challenge the Will before the probate is binding on her. That's why Probate in Solemn Form is usually better. As for her bequest, if you get the Will admitted to probate and she still can't be found, the Executor may have to turn the bequest for her over to the probate court. But it is possible to move forward. I strongly suggest that you hire an experience probate attorney to help you, because it won't necessarily be easy, and the court isn't allowed to help you with legal advice.... Read Answer

You can't remove an executor from your father's Will, but if an appointed co-executor does not want to serve, then she doesn't have to. Power of attorney is not required. Ideally, the appointed co-executor who wants to decline should sign a statement saying that she does not want to accept the appointment and stating some reason for that (too much of a burden, poor health, etc). If you are the other appointed co-executor, you would then seek to be appointed as the sole executor and include that statement from the declining executor with the Petition to Probate Will that you submit to the probate court. You don't have to have an attorney to help with any of it, but it is very, very, very strongly recommended.... Read Answer

It sounds as though there is marital disharmony.  If so, you should make sure that your husband's name is never on the real estate.  Further, your will alone will not protect the house from going to your husband after your death.  He can file a Petition for Year's Support and ask that the house be given to him.  There are several ways to keep your husband from ever getting his hands on the house.  However, without knowing more, there is no clear advice that I can give you.... Read Answer

Your adult children would be their dad's heirs, but that does not necessarily mean that they will receive anything from his estate. If he never divorced his wife, and if their son is a minor, then if there are any assets in the probate estate, they may try to claim them as year's support (I assume your ex also lived in Georgia). Year's support rights are held by a surviving spouse and by surviving minor children, and they come before any creditors or any other heirs. Even without a year's support claim, your children will only inherit a share of any probate assets that may remain after all debts, administrative expenses, and taxes are paid out of the estate. There may not be any. An asset is a "probate" asset only if your ex owned it in his own name, and it was not subject to either a beneficiary designation that named someone other than his estate as beneficiary (like the life insurance that named you) or a right of survivorship. For example, the life insurance proceeds you received are yours, not part of the probate estate, because you were designated as the beneficiary. The house MAY have been owned by your ex and his wife as joint tenants with rights of survivorship, which, if so, would make the house 100% hers automatically at his death, with no part of it passing to his probate estate. If your children believe there may be assets, they do have some options. But they would be well-advised to seek legal counsel to help them figure out the situation and what rights they may have.... Read Answer

Yes, art is an asset that, if it belonged to a deceased person, can be used to pay his debts. If the art is of little value, creditors might not pursue it, but the correct legal answer is that ANY asset belonging to the estate can, and if necessary, should be used to pay debts. If your father was a Georgia resident, and he had a surviving spouse or surviving minor child, then the spouse or child may be able to make a year's support claim and step in front of the creditors. Otherwise, creditors are supposed to get paid before the beneficiaries do.... Read Answer

If there is a beneficiary designated on the 403(b), then the beneficiary should be able to send a death certificate to the company that handles that account, and the company should be able to send the beneficiary paperwork to claim the account. The 403(b) assets would then not be part of the probate estate, and generally would not be subject to the claims of the deceased person's creditors. If the 403(b) designated the estate as the beneficiary, however, then the 403(b) assets DO become part of the probate estate and are subject to the claims of the deceased person's creditors. If the bank account listed a joint owner, it belongs to the surviving owner. If it was only owned by the deceased person, did it have a beneficiary designation: usually called a "Payable On Death" or POD designation for a bank account. If so, the beneficiary can claim it, but under Georgia law (assuming the deceased person had his or her principal residence in Georgia) the assets from the bank account may still be subject to the claims of creditors even though the POD designation applies. If the deceased was the only owner on the account and there was no beneficiary designation on it, then the assets in the account are part of the probate estate. If the value of the assets in the account are under $1,000, there is a state law that would allow the bank to pay the assets over to the deceased person's next of kin if no estate administration will be started. However, that law does not give legal ownership rights to the next of kin, and it does not protect the assets in the account from being subject to claims of the deceased person's creditors.  As for the car, the household items, and any other personal possessions, those belong to the probate estate. The heirs might be able to use an affidavit of inheritance to have the car distributed to a particular person. However, if there are more bills (medical and otherwise) than the value of the assets that are subject to creditor claims, then the car needs to be sold and the proceeds used to pay creditors instead of passing to one or more heirs. If there weren't a lot of creditors, a Petition for No Administration Necessary might work. However, because there are creditors, and it sounds like the estate could be insolvent, an estate administration may be needed. That means filing a Petition for Letters of Administration. If there's no real estate and the estate has more debts than assets subject to creditors' claims, it may not be WORTH opening an estate for anyone in the family, because they won't get any benefits (other than Administrator's fees for whoever serves, perhaps). In that case, the family can walk away. They should not try to take any assets that belong to the probate estate or are subject to claims if they try to walk: not the car or anything else. It would be a good idea to get a consult with an attorney to help determine what the actual situation is.... Read Answer

If you have a Will that names beneficiaries in case your wife dies before you, then you should be able to either execute a codicil or a whole new Will and make the desired change (assuming you are still mentally competent - I assume you are or you wouldn't be posting this question). If you actually have a revocable trust or an irrevocable trust in place, then it may be a different answer. You should also check all beneficiary designations to ensure they work as intended. My best advice is to get an estate planning consultation with an attorney who can help you figure out what you need to do to ensure that your desired change gets made.... Read Answer

If your mother had a Will and it was offered for probate in DeKalb County, Georgia, or if it was filed for informational purposes as required by law even if it wasn't probated, then you, just like anyone else, can see it. You need to contact the DeKalb County Probate Court and ask them whether there is anything on file for your mother. You'll need to provide her full name and a date of death, ideally. If there is anything on file, ask the Court how much you need to send in for a copy of the file, and they will tell you. Then send the Court a letter with a check for the fees. Even if she did not have a Will, an estate may have been opened for her, and you'd still be able to receive information about it. If no estate was ever opened, then there may not be anything on file.... Read Answer

My condolences to you on your loss. If your daughter named her sister as the beneficiary under her life insurance and her sister survived her, then no, her husband cannot do anything to have those assets pass back to your daughter's probate estate or anyone else. Her sister, if willing, can disclaim the assets (assuming that it hasn't been more than 9 months since your daughter's passing), but if the sister has any tax liens or is eligible for Medicaid benefits due to a disabling condition, that may not fix the problem, or it may create problems for the sister. In addition, if the sister is willing to disclaim, the policy will need to be carefully reviewed first to determine what happens to the disclaimed proceeds. They may still not pass to your daughter's estate, or to her husband alone. If the sister is not willing to disclaim the proceeds, or just make an outright gift of the proceeds, then they are hers and there's nothing your daughter's husband can do about that. This is why updating beneficiary designations after a marriage is critical. If the sister may be willing to give up the assets, or at least a portion, then she AND your daughter's husband need to consult good lawyers, figure out the best possible way to proceed, and take the needed steps as soon as possible. A disclaimer must meet very strict requirements with regard to timing and other issues in order to be qualified and not result in the sister's making a taxable gift by giving up the proceeds. In addition, as discussed above, the result of a disclaimer may not be as desired, if the policy's terms don't result in the desired distribution. It's very complicated and it is not a do-it-yourself project.... Read Answer

In general, the answer is that a beneficiary under a Will can generally get the benefits he would receive to another person. The issue, however, is exactly how that happens, and what, if any, tax effects there may be. I would like to note, however, that "bequeath" is NOT the word you want here: to bequeath anything to another person, you have to write a Will that provides for the bequest and then die. I don't think that's what you want to do here. There are two main ways that assets can be distribute to your brother instead of the other beneficiaries who want their shares to go to him: either the beneficiaries may be able to disclaim their benefits, in which case they may pass to the intended brother under the Will's terms, or the beneficiaries who want their shares to benefit the brother can accept them, and then make gifts to the brother. Disclaimers, if possible, would be the most generally desirable option. A proper disclaimer is simply a refusal to accept a benefit. A disclaimer must meet very specific rules to be a qualified disclaimer, but if the disclaimer complies with all the rules, the person disclaiming is not going to be found to make a gift to the person who ends up with the disclaimed benefit. Disclaimers are not always possible: the Will's terms may not direct disclaimed assets in the desired manner, it may be too long since your mother's death (9 months is the deadline), or a beneficiary may be on needs-tested benefits and therefore unable to disclaim without creating problems for himself. Find a good attorney and have the attorney review the situation and the Will, determine whether a disclaimer is possible, and help prepare needed documents if so. If disclaimers will not work, then there are always gifts. Again, legal advice for the proposed gift-makers is a good idea.... Read Answer

If you had your principal residence in Maryland at the time the documents were actually executed by you, and they were valid under Maryland law at that time, then Georgia will generally allow them to have legal effect. That being said, differences between Georgia and Maryland law can mean that they will not work as well as they might be able to if they were Georgia-specific documents. An example is that, in many states, a Will does not waive the requirement that an Executor file inventories and reports with the probate court, because state law does not allow that waiver. In Georgia, you can waive those requirements in the Will, and doing so can make the administration easier and less costly. Also, Georgia creates a "year's support" right for a surviving spouse or surviving minor child, while many other states create a "forced" or "elective" share right for a surviving spouse. These rights tend to operate differently, and documents designed to work in a state where one type of right exists don't often deal well with the other type of right. The best idea if you plan to be in Georgia for an extended period and your principal residence is now based here would be for you to have a Georgia estate planning attorney review the existing documents and let you know how well they may work and whether any changes are recommended.... Read Answer

If the decedent, an ancestor of the decedent, or a child or other descendant of the decedent legally adopted the person in question, then yes, that person would be treated the same as the biological relatives for purposes of determining the heirs to an intestate estate (who are also the persons given the chance to challenge a Will). Whether a person adopted into a family would be treated the same as biological relatives under a Will actually will depend on the provisions of the Will itself- state law considers adopted relatives the same as blood relatives, but some Wills do not treat them the same way. However, if the person was adopted OUT of the decedent's family, for example, if the person is a biological sibling of the deceased person, but was given up for adoption and legally adopted by another family, then that person is NOT normally considered a relative of the decedent for purposes of Georgia law.... Read Answer

Ideally, you should consult an experienced estate and probate attorney who is licensed in the state where the estate is located. If you believe that you can't afford an attorney, then you should try to find other resources. In Georgia, gaprobate.org is a website that contains probate court forms and other information, including a useful guide called "Duties of Personal Representatives of Estates in Georgia." Some probate courts in Georgia (notably Fulton, DeKalb, and Gwinnett, but maybe others) have programs operated in conjunction with other organizations to provide some legal assistance to people who have probate court matters in that court but either can't afford or don't have an attorney helping them. You may be able to find out about any such programs by contacting the court, a local bar association, or a legal aid program in the area. You may also be able to find some resources online to help guide you through, such as other answers on this website or on other forums such as Avvo.com. However, please do consider hiring someone, if only for a consultation. There are a lot of traps for the unwary in estate administrations, and having someone on your side to actively help you discover and avoid those is a good idea.... Read Answer

He will need to get a Petition to Probate Will. There are two types of probate in GA: solemn form and common form. Solemn form requires all heirs to receive notice; common doesn't. Solemn is best because it takes full effect more quickly. He will need the original Will and a death certificate. If he can get the first appointed executor to sign something stating that she is refusing to accept the appointment due to her health, then he should get that from her. The successor Executor is the one who actually has to file the Petition to probate. You can go on gaprobate.org and find a lot of information and copies of the forms. You can also contact the Clayton Probate Court and find out if they have any kind of free probate help available or that they can recommend. Glen Ashman in East Point may also be a good resource; he's very reasonable in his fees and knows what he is doing. I really do recommend getting as much legal advice and help as possible; probate and estate administration is difficult to do without any attorney help because there are a lot of things that need to be taken care of and can easily create very expensive problems if they aren't done or aren't done correctly. Best wishes to you and the gentleman.... Read Answer

If a person died without a Will, here is the basic outline of what happens to that person's assets (including any bank or brokerage accounts, insurance policies, personal items, cars, and real estate): 1. If the asset was owned jointly with another person as "joint tenants" (or, if the state recognizes this form, as "tenants by the entirety" - GA does not recognize tenants by the entirety), then that asset automatically becomes the property of the surviving joint owner. In GA, a joint bank or brokerage is normally owned as joint tenants unless the account was specifically set up otherwise or someone can provide very strong evidence that the surviving owner was really intended only to be able to pay bills on behalf of the deceased person, and that the account wasn't really meant to be a joint tenancy account. However, in GA, any assets that are jointly owned and are NOT bank or brokerage accounts or other financial assets are owned as "tenants in common," and the deceased person's share of the asset becomes part of his or her estate. 2. If the asset was subject to a beneficiary designation, like an IRA or life insurance policy normally has, AND the person's estate is NOT the beneficiary, then the asset automatically becomes the property of the designated beneficiary, if that person survives the deceased person. Regular bank or brokerage accounts can have beneficiary designations, called "payable on death" (POD) or "transfer on death" (TOD) designations, but they don't always have these set up. In GA, real estate cannot be owned subject to a beneficiary designation, but some other states are starting to adopt a form of real estate ownership that does have a beneficiary designation, so if there is real estate outside GA, you have to check the deed. If the estate is designated as a beneficiary, that asset then becomes part of the deceased person's estate. 3. If there are assets that are owned by the deceased person in his or her own name with no right of survivorship or beneficiary designation, they go into the estate. The estate is used to pay all debts, taxes, and administrative expenses. The rest goes to the heirs. Heirs are determined by state law. If your sister had no spouse or descendants, and neither of her parents survived her, then ALL of her siblings are her heirs, including you. If you don't like the attorney, get your own. You're entitled to do so. Best wishes to you.... Read Answer

The time to address this question was 10 years ago, when your father died. You MAY have some interest in your father's assets, although it's unlikely. Note: a Will does not have to be notarized to be valid; it only has to meet state law requirements. In GA, that means the person making the Will has to sign it in front of two witnesses and let them know it is his Will. The witnesses they also both have to sign the Will. A notary is only required for there to be a "self-proving affidavit." That only makes it easier to probate the Will. If your father had a Will, then you have to see what it said. If everything went to his wife outright, it was all hers after that. you wouldn't have any interest in his property. You also have to look at any jointly-owned assets to see how they were owned. Property owned as joint tenants passes automatically to the surviving owner when one owner dies. Only property owned as tenants in common would even have become part of your father's estate and subject to his Will or to state intestacy rules. If he owned assets as joint tenants with his wife, those became hers automatically at his death, and you have no interest in the assets. You also then have to look at whether your father's wife made a year's support claim after his death and was awarded any property under it: if so, that is her property and again, you have no interest in that property. Finally, you have to see whether he had any assets subject to a beneficiary designation of some kind: if his wife was the beneficiary, then she received those assets and they became hers; you would have no interest in those. If your father did NOT have a Will, then he was intestate at his death. Under GA law, the assets in an intestate person's probate estate (which again does not always include all of that person's assets, because assets can pass by joint tenancy or beneficiary designation) are divided between the person's heirs. In GA, a married person's heirs include his spouse, if the spouse survives, and the person's children (and the descendants of any children who died before him). If there was only you and his wife, you would have each received 1/2 of your father's estate. The wife could have taken a larger share through a year's support claim. If she didn't, if your father died intestate, and if he had any assets that became part of his probate estate, you MIGHT actually own a share of at least some of the assets left at his wife's death (particularly real estate). But you will have an uphill battle determining all that now. If you want to try, find a very good estate attorney; preferably one with litigation experience. You aren't your stepmother's heir (unless she legally adopted you), and so you have no right to her probate estate unless her Will gives you an interest in the estate. You would only be able to claim any interest you might rightfully have in your father's original portion of assets he owned at his death. The statute of limitations may also be a problem.... Read Answer

Your kids can offer to sell their interests to the other owners, but there's no way you can actually force the other owners to buy the interests. If the kids really want to get out of the mess, they may need to file a suit to have the property partitioned. That would allow them to get out of their interests. However, petition suits can go on forever, and the resulting interests may be so small or limited in value that no one will purchase them. If your kids want to try to get out of this property, find a good real estate attorney and have them help with negotiations.... Read Answer

If your mother had a Will which left everything to her common-law spouse, then it all belonged to him and was his to do with as he wished at his own death. The same result applies if your mother and her spouse owned their house or other assets with rights of survivorship or she had named him as her beneficiary on any life insurance, retirement accounts, or other assets. If she had no Will, however, then assuming she had her principal residence in Georgia at the time she died in 1987, her children would have had some rights to her probate assets (those that she owned in her name, without any beneficiary designation or right of survivorship applying to them). However, her spouse might have been able to claim the assets under a year's support and thus bypass the children's rights anyhow. And again, no matter how he obtained ownership of an asset, once it became his, neither your mother nor anyone she might have wanted to benefit has any rights at all to those assets. So, most likely you are not entitled to anything. The only way you might be entitled to something is if there was an asset that became part of your mother's probate estate, was not awarded to your mother's spouse under a year's support claim, and did not pass to him under her Will. In that case, there may be some lost asset out there in which you have an interest. The most common way this happens is with real estate. If the real estate was owned by your mother and her spouse as "tenants in common," then her half of the property stayed in her probate estate and did not pass to her spouse automatically. Tenants in common is the default form of joint real estate ownership in Georgia, but not in some other states. If the deed only lists the names of the owners and does not clearly indicate that they are intended to hold the real estate as "joint tenants," "with rights of survivorship," or something very similar, then it was tenants in common. If that was the case with real estate, and if her estate was not administered properly and she had no Will, then portions of her interest in the real estate may actually have become the property of her children, as well as her spouse, at her death and not passed to him only. If that is the case, then both your mother's children and her spouse's children may actually own interests in the property. It will then be a mess to clean up. You might be able to find out by having a title search performed with regard to the property.... Read Answer

What state is the real estate located in? That's the starting point. Under current Georgia law, the wife and children would split his 1/2 share in the property if he had no Will. I am not 100% certain if the rules were the same in 1981; I believe they were similar, however. If he had a Will, then the Will would determine what happens to his interest in the property. Most likely the wife did NOT receive the man's 1/2 interest unless either he had a Will which provided for her to receive all of it, or she filed a year's support claim and was awarded his entire interest in the property as part of the year's support claim. If this is a real situation in your family, however, you really should get legal help to determine what did happen and what needs to be done to clean up the title to the property as soon as possible, before the same problem just gets worse as the wife and children start dying off.... Read Answer

You need to contact an estate litigator (I am not one, although I know a number of them) as soon as possible, before you run out of time to answer. Based on your question, it sounds like your sister may be appointed as the Executor, but she may not be a good choice for that role. If the petition you received notice of would admit the Will to probate and make her appointment as Executor final, then you may want to challenge her appointment and propose someone else (possibly yourself) as Executor instead. I can't tell from your question exactly what you've been served with, but my guess is that it's probably a petition to probate the Will and get your sister appointed. If you don't answer in the required time, and that is what it is, you will lose your chance to object to the probate and your sister's appointment. If she's really not a good choice for that role, you could end up with her damaging the estate and your interests in it, and then having to try to have her removed. It would be better to get that aired out up front. But it should not be a do-it-yourself project. Get a consultation with a good estate litigator and see if they think you have a case worth pursuing. But don't wait; you will lose your chance very quickly. Best wishes to you.... Read Answer

It's not clear whether your grandmother is still living or not. If she is, then her Will doesn't have any effect yet. If she isn't, then the only question is whether your aunt has the power to actually sell the house, and whether she is using the proceeds appropriately for your grandmother's benefit. If you really want to know whether you have a case or if anything can or should be done, the fastest way to get an answer will be for you to consult an estate and trust litigator (I am not one, but they are out there). The attorney should be able to ask you all of the questions to get a better idea of what is actually going on. If you have copies of any documents, you should show them to the attorney. This is not the type of forum which really lends itself to a specific answer regarding what can be done in a particular situation, which is what your question is asking. Many attorneys give either a free or low-cost consultation. But find one with a lot of experience who focuses on fiduciary litigation. There may be steps you can or should be taking to protect yourself or your grandmother, but if there are you'll need to move very quickly. Submitting answers in this kind of forum and then waiting for answers isn't going to be in your (or her) best interest if abuse really is going on. Best wishes to you.    ... Read Answer