Georgia Probate Legal Questions

You may not be able to find the original Will. One place to check would be with the probate court where the deceased person lived, to find out if there was any Will placed "for safekeeping" with the court during the deceased person's lifetime. However, in my experience that is a very unusual thing, and it is more likely that if there was another original Will, it has been made to disappear, either by the deceased himself (in which case, he revoked it) or by someone else. Georgia law presumes that a lost original Will was destroyed by the deceased person with the intent to revoke it, if the deceased person was known to have access to it before his death. If the only Will now is one which differs from the prior Will, then the questions are: 1. whether the new Will was validly executed (this is a question of fact and depends on a lot of variables); 2. whether the new Will actually reflects the wishes of the deceased or whether someone exercised "undue influence" over the deceased at the time the Will was made and signed (again, a question based on a lot of variable and facts); and 3. whether the deceased person had the required mental capacity to sign the Will at the actual signing date and time (again, a question of facts and involving lots of variables). If you were a beneficiary under a prior Will and you are not a beneficiary under the new Will, you MIGHT have the ability to challenge the new Will. However, you have very limited time to challenge a Will once it has been offered for probate, and you need the help of an experienced estate litigation attorney for that purpose. If you think you have a case, you should contact an estate litigation attorney to discuss the actual situation as soon as possible.... Read Answer

My condolences on your loss and on the added distress you are suffering. You and your other family members are free to hold (and pay for) your own memorial service for your sister, but unfortunately, unless she had an Advance Directive for Health Care or similar document appointing someone other than her husband to make decisions for her regarding the disposition of her body after her death, he would normally be the person who gets to make those decisions under Georgia law. Whether he has warrants out for him does not affect that question. If he and she were in the process of getting divorced, that might change the answer, but you don't state in your post that they were getting divorced. And it may be too late now anyway. I'm sorry to be the bearer of bad news, but the law does not normally give extended family the right to make those decisions instead of a spouse.... Read Answer

"Funeral expenses" is generally meant to cover expenses typically associated with a funeral. The two days in the funeral home followed by burial is likely a reasonable funeral expense. Under Georgia law, funeral expenses are paid from the deceased person's estate. The language you cite, in combination with Georgia law, means yes, all funeral-related expenses should get paid from the estate. However: some items are not funeral-related for this purpose, such as travel for out-of-town family members to attend the funeral. Ideally, who ever is administering the estate will have an attorney help them determine the best way to handle this issue and other issues.... Read Answer

If your Will states that your spouse is to receive your assets when you die, then she will receive the house if you are the sole owner of the house at your death. It will go through probate, but in Georgia probate is neither expensive nor all that difficult, as long as no one is fighting over what you're doing. Also, depending on the situation, your spouse may be able to request that the house be awarded to her as a "year's support" claim, which could produce a nice property tax break for a year. You should not simply do a quit claim (note: it's quit claim, not quick claim) deed. What you should do is meet with an experienced estate planning attorney and get a review of your situation, to determine whether everything is set up as well as possible for both you and your spouse. This is not a good forum for asking specific questions about what you should or should not do.... Read Answer

In Georgia and, to my knowledge, most other states, the answer is no. This is a common misconception, however. The only time ownership of a deceased person's asset will transfer automatically is if the asset is held by the deceased person and a surviving owner jointly, AND the owners hold rights of survivorship. Whether joint owners hold rights of survivorship has to be determined based on how the title to the asset is held. In Georgia, there are two conflicting default rules for jointly held assets. Financial institution accounts, such as bank accounts, CDs, or brokerage accounts, are normally automatically considered to have rights of survivorship if owned jointly, unless the account paperwork actually says that the account is held as "tenants in common" (sometimes shown as "t in c"). All other assets (including individually-held stocks and bonds, if in certificate form and not held through a brokerage account), meaning real estate, cars, and other personal property, are held by default, if joint owners are listed, WITHOUT rights of survivorship. That means, if one owner dies, the other owner continues to own his or her share, but the deceased owner's share becomes part of his or her estate. Nothing passes automatically. However, when titling real estate or cars, it IS possible to have the deed or title set up so that it states specifically that the owners hold the title as "joint tenants," or "with rights of survivorship." In that case, the ownership of the deceased owner automatically passes to the surviving owner. This is a tricky part of dealing with a deceased person's assets. If you have an actual situation and need help figuring out ownership, please consult an experienced probate attorney for help.  ... Read Answer

A child of a deceased Georgia resident is an heir of the deceased, and as such does have the right to try to challenge the deceased person's Will. In addition, depending on when the Will was made versus when the child was born, the child may be was is called a "pretermitted heir," and may have the right to a share of the father's estate as if the father didn't have a Will (if the child is the only heir, that may mean the Will is effectively invalid and the child receives the whole estate). If the child is over 18, he or she should consult an attorney who is licensed in the state where the father had his principal residence at death as soon as possible. Timing can be of the essence in these cases. Have the attorney review the Will and all other relevant facts and give an opinion about the best way to proceed. If the child is under 18, there may be an additional option, which is for the child to file a request for year's support from the father's estate. This is also a timing-sensitive issue, so if the child is under 18 a representative on behalf of the child needs to start moving as soon as possible, and consult an attorney on the child's behalf. If the child is under 18, that person will likely be the person who is guardian. If there's no guardian, then someone needs to get appointed as soon as possible.... Read Answer

My condolences on your loss. Assuming you and your sister can agree on which one of you (or which third party) should be appointed as the Administrator of your father's estate, that person will need to file a Petition for Letters of Administration in the Probate Court for the county where your father had his principal residence (this assumes he had his principal residence in Georgia). While a person filing for Letters of Administration is not required to use a lawyer in Georgia, using a lawyer can help the Administrator and the estate save a lot of time, money, and hassle by helping avoid pitfalls. Best wishes to you.... Read Answer

My condolences on your loss. If your husband's principal residence was in Georgia at the time of his death, then yes, it would be perfectly permissible and valid for him to make a Will which left you nothing. Whether his actual Will is valid is a different question. If you have any question as to whether it is really his Will, whether he was mentally competent to make the Will at the time the purported Will was made, whether someone was exercising undue influence over him, or otherwise, then you should consult an experienced estate attorney as soon as possible. You should also look into the possibility of making a claim for year's support. In Georgia, a surviving spouse is entitled to seek an award of "year's support" from the probate estate of a deceased spouse. There is not a set share or amount to which you would be entitled, and your stepchildren would be able to challenge your request. But, this may be the only way for you to receive assets other than any which may have come to you under a beneficiary designation or right of survivorship. You should not wait any longer to pursue your rights, however. If your husband died in December 2013, the clock is ticking, and delay may either effectively or legal cost you any rights you do have. When looking for an attorney, you should try to consult one with dispute resolution or litigation in the estate and trust arena as significant practice areas. And be warned: if the stepchildren want to challenge, it can become very expensive very quickly. But you do have some rights, even if the Will does turn out to be valid. Best wishes to you.... Read Answer

Probate is essentially the process of having a Will proven as valid to the court. However, a “probate estate” consists of assets which belonged to a deceased person and were not subject to either a right of survivorship or a beneficiary designation at the owner's death. Those assets must be dealt with by an Administrator if there was no Will. That person is appointed by the probate court for the county where the deceased had her principal residence. If your mother owned her house in her own name, then it became part of her probate estate at her death. The probate estate also includes other assets, such as her clothing, jewelry, furniture, car, and any regular bank or brokerage account, as any assets which became payable to her estate. Her heirs will have to select someone to serve as Administrator (If she had a surviving spouse or any minor children, there may be another option). If all of the heirs agree, then the Administrator can be appointed with a grant of certain powers and a waiver of any requirement that the Administrator post a bond or file inventories and reports with the court. If all of the heirs don't agree, the Administrator can be appointed by a majority in interest of the heirs, but the waivers and the grant of certain powers can’t happen. This makes it more expensive and difficult. Your mother's heirs include her spouse and her children. If a child died before her, the deceased child's children would be heirs in the deceased child's place. File a "Petition for Letters of Administration" with the probate court. There's not an alternative to reporting everything to the court - the Petition for Letters of Administration requires asset information. There is an option called a "Petition for No Administration Necessary" which could be available, but the creditor you mentioned would have to consent to that. In any estate, valid debts owed by the deceased person must be paid before any heir receives anything. Her debts will have to be paid before the house can be distributed to any heirs. If you were planning to sell the house, the creditor can be paid out of the net proceeds. If someone wants to keep the house, you'll have to figure out a way to pay her debts before the house can be distributed. The only way you can refuse to pay the debts is if you reasonably believe that they are not valid, such as if your mother were the victim of identity theft prior to her death. You may be able to negotiate a reduced amount. Whoever wants to take on the role of Administrator should consult an attorney for help, especially if you think there is any possibility that the estate may be insolvent. You can't just walk away from an intestate estate which holds real estate in Georgia - the heirs could become personally liable for expenses which arise with regard to the real estate after the owner's death. If an administration is not handled correctly, the administrator can end up becoming personally liable to the decedent's creditors or heirs.... Read Answer

If your wife designates her estate as the beneficiary of her IRA, she is ensuring the worst possible income tax result for the assets which remain in it at her death. If she is under the age of 70 1/2 years old at her death, the IRA would have to be fully withdrawn within 5 years after her death. If she is over 70 1/2 at her death, then the IRA assets will have to be fully withdrawn over a period based on her life expectancy as of the age she was when she died, according to the IRS tables used for this purpose. However, if she named you as her beneficiary, you would be able to either roll the IRA over into your own IRA, or, if you preferred, you could withdraw the assets from her IRA without a penalty (even if you were under 59 1/2 at the time your wife died) but over a period based on your own life expectancy. If your wife has children or other, younger, persons she wants to benefit, she could name them directly and they could use their own life expectancies as the withdrawal periods. So, by naming her estate, she's creating a situation where a lot of continued income tax deferral which could have been available will instead be lost. She is also making the IRA assets subject to claims of any creditors she may have at her death, while by naming beneficiaries directly, she could protect the IRA assets from her creditors and help ensure they were available to the beneficiaries. Finally, if there are young beneficiaries and it would be desirable to have a Trustee appointed to manage their assets for them for some period, by not having a properly drafted Will put in place she is losing out on the ability to have the IRA paid directly to trusts for the younger beneficiaries. Done properly, the trusts can still use the individual beneficiaries' life expectancies as minimum required distribution periods. But this can't be accomplished by naming the estate as the beneficiary. Your wife should ideally also have a Will for other purposes, including to make it easier for her family to manage her affairs after her death and to ensure that her assets pass the way she wants them to, and to the person(s) who she wants to have them. She should ideally also have a Power of Attorney and an Advance Directive for Health Care. You should, too. So yes, be concerned, and try to get your wife to consider having an experienced estate planning attorney help her actually put together a good estate plan.... Read Answer

If the person who is in hospice is still mentally competent, at least to the fairly limited extent needed to execute a Will in Georgia, then yes, she could still execute a codicil. If she did not have the required level of mental capacity, or if you think there was undue influence by your sister or someone else, then you may be able to challenge the Will, if you haven't already consented to have it probated and it hasn't already been admitted to probate. But you will need to consult an estate litigator as soon as possible to see if it is worthwhile.... Read Answer

Houses do not have beneficiaries in Georgia. There are only either joint owners who hold rights of survivorship or persons who receive the property through the probate estate of the deceased owner at the owner's death. If you want to change who will receive your house when you die, then you need to (1) ensure that you own the property in your own name, not as joint tenants or tenants in common with anyone else (if there is already another person on the deed it may be too late, unless they are willing to give their interest back to you) and (2) ensure that your Will (or a revocable trust) says that your assets (or at least the house) will be distributed to the desired person at your death.... Read Answer

Is the Will the husband's Will, or the wife's Will, or a joint Will? That matters. If it's the wife's Will, no one can change it. If it's the husband's Will, and he's still living, he can change it, assuming that he has the required level of mental capacity (which is fairly low). If it was a joint Will, then wife's part cannot be changed, but unless there is a separate, written, signed, contract between the husband and the wife in which the husband promised not to change his part, then he can change his part. At any rate, the original Will should have been filed with the probate court of the county where the wife had her principal residence fairly soon after she died, even if it wasn't going to be probated. This is required by Georgia law. It is not too late for someone to do that. Send the original Will and a certified copy of the wife's death certificate to the probate court and tell them the filing is for informational purposes only.... Read Answer

Dont call me but call a local GA lawyer. Mom's will determines who inherits from her. If she has no will when she dies, state law determines who inherits from her. I dont know GA law, but you and her new spouse would inherit under the PA statute. Also, a new will overrides a prior will. ... Read Answer

One option would be for someone else to come forward and file to be appointed as Administrator. If a purported Executor claims there is a Will but refuses to offer it for probate, and if no one else has seen the Will and is certain it exists, then that might be a good course of action. However, if you are pretty certain that there is actually a Will, then an interested party, preferably an heir of the deceased, will need to petition the DeKalb County Probate Court to have the Court compel the purported Executor nominee to produce the Will. It may also help to point out to the purported Executor that Georgia law actually REQUIRES that an original Will be filed with the appropriate probate court within a reasonable time after a person's death, even if the Will is not going to be offered for probate. This filing is for informational purposes if the Will is not being offered for probate. O.C.G.A. Section 53-5-5. This can be enforced by fines and imprisonment. If you want to file a motion with the probate court to compel production of the Will, you should consult an experienced probate litigator. It's not a good do-it-yourself project. If fees are really going to be a problem, however, the DeKalb Probate Court now has a Probate Information Clinic at which local attorneys can provide free, although limited, help to persons dealing with probate issues on their own. You should contact the court to find out more.  ... Read Answer

Okay, it looks like this adds information to your other question. If your father and you were both listed on the account, then whether or not the account is part of your father's probate estate will depend on a few variables. The default rule in Georgia is that a joint account is held by the joint owners as "joint tenants with rights of survivorship." That means that a joint account generally becomes the property of the surviving owner(s) automatically upon the death of an owner. No part of the account is then included in the deceased owner's probate estate. However, two other situations can exist. In some cases, a joint account is set up with the owners listed as "tenants in common" (often marked as "t in c"). In that case, the account ownership does not pass automatically to the surviving owner(s) at one owner's death. Instead, the deceased owner's interest (whatever that may be) does become part of his probate estate. The way you determine ownership of a financial (bank or brokerage) account under Georgia law is to look at the contributions made by each listed owner during their lifetimes. If the deceased owner actually put in 90% of the contributions, in other words, 90% of the account is his, and, if the account is owned as tenants in common, the deceased owner's estate controls 90% of the property in the account. The second situation is that, IF the account was established as a joint account by the primary contributor SOLELY so that the other listed owner(s) could help the primary contributor out with things like paying bills and managing investments (in other words, if the account was set up as a joint account for the convenience of the primary contributor), and the primary contributor did not really intend for the other owner(s) to automatically receive 100% of the account at his death, then the account becomes part of the primary contributor's probate estate. However, if a would-be heir wants to prove that a purportedly joint account was really established solely for the contributor's convenience and not to create a true joint tenancy account, the would-be-heir needs to provide fairly strong ("clear and convincing") evidence that that was the case. Or, the listed surviving joint owner could admit it and sign an affidavit, if he or she does not want to keep the entire account for himself or herself. In your case, you need to figure out how the account was actually set up. If it was a joint tenancy account (no tenants in common designation), you then need to look to your own knowledge of your father's intent to figure out what should happen. If you know he really meant for the account to get divided among his heirs, then you may want to sign an affidavit that the account was intended solely for his convenience. You could also claim the account, but then make gifts to the other family members. If you do that, however, you should be aware that you could be creating gift tax issues for yourself.... Read Answer

My condolences to you on the loss of your father and your sister. As for your question, in Georgia, the children of a deceased child of your father would normally take their deceased parent's place as heirs. So, assuming your father had his primary residence in Georgia at the time of his death, your deceased sister's children would take her place as heirs of your father. That does not, by itself, answer the question of who receives money held in his account. The only assets which heirs of a deceased person are entitled to receive are assets which become part of the deceased person's probate estate. Only if an account was owned by your father in his sole name, with no other owners and without any "payable on death" or other beneficiary-type designation, would his heirs receive assets from that account. But if the account is part of his probate estate, then yes, your sister's children would take the share she would have received if she survived your father. I would very strongly suggest that whoever is administering your father's estate get the help of an experienced probate attorney to help with the administration.... Read Answer

All you need to do to disinherit a grandchild or other potential heir in Georgia is have a properly-drafted Will prepared and then ensure that your assets are owned and beneficiary designations set up in a manner which is consistent with your desired plan. It may also be helpful, although not necessarily required, to use a fully-funded revocable living trust rather than just a Will. An experienced estate planning attorney can help you figure out how best to proceed.... Read Answer

If you are ever a recipient of Medicaid benefits to pay for nursing home care, then yes, the state is required by law to try to recover amounts paid from your estate after you die. This is called estate recovery. For this purpose, "estate" is defined more broadly than for probate purposes under Georgia law. Whether you are the only one on the deed is not the key factor, and the fact that other owner(s) are listed on the deed does not necessarily protect the house from estate recovery. In addition, simply adding people to the deed (or giving away the house altogether) can end up causing you not to be eligible for benefits when they are needed, so please do not try to accomplish self-help Medicaid planning. If you want to know what steps you may be able to take in order to preserve assets for the eventual benefit of your family while still helping ensure that you can receive Medicaid benefits for nursing home care if needed, you need to find a good elder law attorney who knows the ins and outs of Medicaid eligibility and planning. This isn't actually a Wills and Probate question - it's an elder law question.... Read Answer

My condolences to your sister and the rest of your family. This sounds like a terrible situation. Your sister will not be able to get medical power of attorney over her daughter if her daughter is not conscious and able to sign the appropriate document. Your sister needs to pursue a guardianship - possibly a temporary one. A guardian, in Georgia, is a person who has the legal right to make decisions for an incapacitated person or minor regarding that person's physical well-being. Your sister needs to consult an attorney who deals with guardianships. One complicating factor is the different states - your sister may need a Florida attorney if her daughter was a Florida resident, and the guardianship may then need to be transferred to Georgia once the daughter is moved here.... Read Answer

My condolences to your sister and the rest of your family. This sounds like a terrible situation. Your sister will not be able to get medical power of attorney over her daughter if her daughter is not conscious and able to sign the appropriate document. Your sister needs to pursue a guardianship - possibly a temporary one. A guardian, in Georgia, is a person who has the legal right to make decisions for an incapacitated person or minor regarding that person's physical well-being. Your sister needs to consult an attorney who deals with guardianships. One complicating factor is the different states - your sister may need a Florida attorney if her daughter was a Florida resident, and the guardianship may then need to be transferred to Georgia once the daughter is moved here.... Read Answer