Georgia Probate Legal Questions

If a beneficiary is also a witness, typically in Georgia the result is that the benefits which the witness/beneficiary was to receive under the Will or codicil are not received. This is because you can either be a witness or a beneficiary, but not both, and the law tends to lean towards upholding the Will. Allowing the witness/beneficiary to be a witness but not a beneficiary can allow the Will to remain valid in other respects. Disqualifying the witness/beneficiary as a witness would prevent the Will from being valid at all. Therefore, the witness/beneficiary receives nothing but is counted as a witness.... Read Answer

No. Generally, the ownership of a group life policy cannot be effectively changed, and, to the extent it can be, doing so usually requires that the current owner complete and submit the proper forms to the insurance company. The insurance company provides any such forms. A Will will not normally be able to change the ownership of the policy. An individually owned policy is different. Ownership of an individually owned policy could be transferred by the policy owner's Will. If you are actually asking about the beneficiary designation, that has to be changed by forms provided by and submitted to the insurance company. Unless the insured person's estate is the designated beneficiary, the insured's Will will not have any control over or effect on who receives the proceeds of the policy.  ... Read Answer

Your question does not give a clear idea of the situation. If you are the designated beneficiary of a life insurance policy on someone else's life (no matter who issued it), then you will receive the proceeds at that person's death no matter what that person's Will says. Beneficiary designations will control assets subject to them. The one exception is that, if the person's "estate" is actually the beneficiary (through either a deliberate designation or a default designation set out in the policy itself), then the proceeds would end up controlled by the Will after they are paid to the estate. Your question, however, states that this life insurance policy is through your employer. If it is through your employer, and if it is on your own life, and you are the beneficiary, then your estate may end up with the proceeds at your death. If the policy is issued by your employer on the life of your child or spouse, however, and you are sure you are the designated beneficiary, then you should receive the proceeds at that person's death if you survive him or her. If you are asking whether you could change a beneficiary designation which names you by designating someone else to receive the proceeds of the policy in your own Will, the answer is no. A beneficiary designation must be changed through the process set out by the insurance company. This usually means change of beneficiary forms must be executed by the owner of the policy during the lifetime of the insured and submitted to the company.    ... Read Answer

If the life insurance was payable to the estate as the beneficiary of the policy, which it sounds like it was based on the way the check was made payable in your statement, then yes, someone will have to get appointed as the administrator of the estate (if there was no Will), and the check will have to be deposited into an account set up for the estate. The estate will also need to be properly administered, which includes paying debts and claims against the deceased person, filing final income tax returns for him or her, and a number of other tasks. Only once a complete estate administration process has taken care of the needed tasks and the decedent's debts and final taxes have all been paid can any funds or other assets be distributed to any beneficiary of the estate. If you have not hired an attorney who is licensed in the state where the deceased person had his or her primary residence, then I very strongly suggest that you do so as soon as possible. The attorney should be one experienced with probate and estate administrations. The attorney should be able to help you figure out the proper way to proceed.... Read Answer

Dear Georgia, We live in such an instant society that we come to expect everything to happen quickly.  You do not indicate when the will actually was probated.  Probate is a process and it can take anywhere from 6 months to many years.  No gifts can be distributed to heirs or beneficiaries until the claims (decedent's creditors) are handled....either paid, settled or waived.  Creditors are allowed 6 months to file claims against an estate in Illinois, so here, nothing happens in terms of distributions before the six months has expired.  Be a little more patient and remember your sister is grieving also....let her catch her breath and let at least six months past before you expect any distributions. ... Read Answer

Dear Georgia, I practice in Illinois; however, the general rules of Probate are universal.  Probating a will can take anywhere from six months to multiple years.....The time frame all depends on the size of the estate, the claims placed upon the estate, the liquidity of the estate, the validity of the will and whether or not the will is contested.  Generally ALL claims (and they are prioritized by law) are paid first and then IF there are any assets or money left over, the bequests or gifts are distributed.  Sometimes when an estate is asset rich but cash poor and laden with many claims, it is required to sell the assets and pay off the bills...the claims.  It is vital that the Executor does not make the mistake of making a distribution and then realize it was needed for payment of claims.  Sometimes upon making distributions before the estate is totally settled, the Executor will require beneficiaries to sign a document saying they'll return their asset or gift if it is determined it is needed...a sort of bond.  This is allowable by statute in some states, but personally unless an estate is extremely liquid, I do not consider using this method.  So basically Probate is an opportunity to improve the skill of patience because you wait....and wait....and wait.    Best wishes to you and I hope your waiting is almost over.... Read Answer

What is your question? If your father was a Georgia resident at the time of his death, and if you were an adult, he would have been free to leave you nothing under his Will. In addition, since it has been five years since his death, you may be too late to challenge the Will. If the Will was submitted for probate, you should be able to get a copy of the Will and everything else in the file from the probate court of the county where your father had his principal residence at his death. But if you think you want to challenge anything, you should see an actual attorney as soon as possible, because if you do still have any time to do so, it may be running out very soon.... Read Answer

My condolences to you on the loss of your father. If your father was receiving Medicaid benefits for nursing home care prior to his death, then by federal and state law the state must attempt to recover the benefits paid from your father's estate after his death. Georgia defines an "estate" for this purpose fairly broadly. This has nothing to do with having a Will or not. The Medicaid claim is one of a number of potential claims which must be paid out of the estate before assets can be distributed to any heirs. If your father did not have a Will, you, as a child, should be one of his heirs. However, that does not necessarily mean that you will receive any assets. If your father's debts, including the Medicaid claim, exceed the value of his assets, there will not be anything left for his heirs. If you have concerns about whether the estate is being handled correctly, you should contact an attorney who can then go over the facts and help you figure out what questions to ask.  ... Read Answer

I have to assume that this is a Georgia matter. If not, my answer may not be correct. If your aunt's name was on the property at the time she died, then someone should have dealt with her estate at the time of her death. It is not clear from your question exactly how the property was owned, but here are two likely possibilities and the situations which may have resulted (I am assuming you and your aunt were the only owners listed on the deed): 1. You and your aunt were listed on the deed by name, with the words "as joint tenants," "with rights of survivorship," or something very similar. IF the deed was set up this way, then you automatically became the owner of the property at your aunt's death. You don't need to take her name off the deed to sell it; you just need to have a certified copy of her death certificate handy to show to a potential purchaser. The death certificate will need to be filed with the deed. You could also file an affidavit in the appropriate Superior Court clerk's office (the court would be the Superior Court for the county where the real estate is located), including the death certificate and stating that you and your aunt owned the property as joint tenants and that you are the sole owner as the result of her death. This scenario MAY be somewhat unlikely, but it's possible. You have to check the deed to find out. 2. You and your aunt were listed on the deed, but the deed does NOT also contain words such as "as joint tenants," or "with rights of survivorship,"  or the deed even specifically states "as tenants in common." In that case, your aunt's interest may have become the owner of her share of the property (1/2, unless the deed stated that you each owned a different share) at her death, if she had a Will. If your aunt did not have a Will, then her heirs would have received interests in the property at her death, subject to the appointment of an administrator for her estate. Normally, a niece or nephew would not be an heir to a deceased person, unless the deceased person had no spouse and no children or other descendants, neither of the deceased person's parents survived her, and the sibling of the deceased person who was the parent of the niece or nephew is also deceased. So, you may not be an heir to your aunt's estate, and you may not even be entitled to her interest in the property unless either you are actually her sole heir OR she had a Will which left you the property. However, if your aunt's interest didn't pass to you automatically at her death as discussed in Paragraph 1, then someone needs to deal with her estate in order to transfer her interest to anyone.  You REALLY need to contact an estate attorney who can ask you the relevant questions, find out whether your aunt had a Will or not, and help you figure out what needs to be done.... Read Answer

It's not clear what your question is. If your father was ill enough to have been on a ventilator just prior to the time he signed his Will, then there may be some reason for you to suspect that there was some undue influence involved. If he has actually passed away and someone is now trying to offer that Will for probate, then you should contact an actual estate litigation attorney as soon as possible, because once the Will is submitted to the probate court you usually don't have a lot of time to delay. You may also want to check with the probate court in the county where your father had his primary residence (assuming this is a Georgia matter), to see whether anyone has submitted the Will for probate in common form. As a child of your father (assuming you are legally his child by birth or adoption and that you aren't a stepchild), you would normally be an heir. Neither your aunt nor your cousin would normally be your father's heirs if he had any surviving descendant. This can give you some additional evidence that a Will which makes provisions for them at your expense might be the product of undue influence. But in order to see if you really have a case, you'll need to actually talk to an estate litigator who can find out all of the relevant facts and circumstances. Don't wait, do it soon, and don't sign anything before you've talked to someone about your potential case. Good luck to you.... Read Answer

My condolences to you on the loss of your mother. I have to assume your mother and stepfather were both Georgia residents at their deaths; if not, this answer may not be correct. If your stepfather died in 1999 his Will should have been probated at that time, unless there were no assets which became part of his probate estate (i.e., if everything he owned was subject either to a right of survivorship or a beneficiary designation, and he owned absolutely no assets besides non-titled personal property in his own name with no beneficiary designation or right of survivorship). Unless your stepfather's Will created a trust to benefit your mother during her lifetime and then pay out after her death, his Will should have nothing to do with what happens after your mother's death. If your mother did not have a Will of her own, then the Georgia rules regarding what happens when someone dies intestate (without a Will) would determine what happens to her probate assets; assets owned by her and someone else as joint tenants with rights of survivorship would pass to the surviving owner automatically at her death, and assets subject to a beneficiary designation would pass under the beneficiary designation. You should gather as much information as you can find about the assets your mother and stepfather owned, a copy of your stepfather's Will and any Will your mother may have had, and find an experienced estates attorney who is licensed in the state where your mother had her primary residence at her death. That attorney will need to take a look at the entire situation and help you figure out what should be happening right now. If things were not handled correctly at your stepfather's death, you may indeed need to offer his Will for probate now, but it may also be the case that you only need to deal with your mother's estate and your stepfather's Will has no effect. But that's not the sort of issue which can be addressed in this type of forum.... Read Answer

Almost every well-drafted Will contains a statement that says the Executor is relieved from any requirement to post a bond or to file inventories and reports with the court. Some states have laws which don't allow some of these items to be waived, but Georgia allows all of these to be waived. Without reading the actual Will, I couldn't tell you exactly which provision waives it, but if you can read the Will yourself you should be able to find it. There should be a statement which essentially says that the Executor is not to be required to file any inventory or reports with the court. If you have a good Executor, removing the requirement for inventories and reports to the court and the requirement for a bond actually saves the estate a lot of extra costs, because all of those items take time and money, which the estate pays. If your fiance is requesting an accounting from the Executor because of alleged wrongdoing on her part, the waiver will not prevent the court from being able to order her to produce information.... Read Answer

My condolences to your fiance on his loss and the extra stress his sister's behavior has caused. Unless you have some specific evidence that his sister's attorney actually given her bad advice, I would urge you not to try to pursue the lawyer. First of all, the fact that the attorney withdrew from the case looks to me as if the attorney may have been trying to get the sister to do the right things, and ended up having to fire the sister as her client for failing to comply with the attorney's advice. Even the best attorney can end up with a client who will not follow advice, and sometimes you do have to fire them. If the sister claims and shows evidence that her attorney gave her bad advice, this should come out in the hearing for her removal. Also - if this is a Georgia estate, the sister's attorney likely represented the sister, in her role as Executor, and not your fiance or any other beneficiaries of the estate. That means the sister would be the first person in line to be able to pursue her attorney for bad advice. The beneficiaries of the estate actually have less ability to sue the attorney for the Executor, since that attorney does not represent the beneficiaries. My advice would be to see what comes out at the hearing. At that time, if it really looks like the attorney told your fiance's sister to do the wrong thing, he may have a case to complain. In that case, he can contact the state bar association for help. But it may well be that the sister did whatever she wanted, ignoring her attorney's advice, and complaining without more evidence about what may have actually happened between the sister and her attorney is jumping the gun.... Read Answer

You need to hire an experienced estate attorney to help you figure out what to do. I am assuming that your mother lived in Georgia at the time of her death. If your mother and stepfather actually made a joint Will (which would have been a very bad idea), and if the Will was admitted to probate or simply filed with the Probate Court for informational purposes only at your stepfather's death, then the probate court of the county in which your stepfather died probably has the original Will. If your mother did not make a new Will after your stepfather's death, then that joint Will will likely need to be probated now. If you think that Will was revoked by your mother after your stepfather's death, and you can't find out whether she made a new Will, then you may want to consider seeking Letters of Administration for your mother's estate. This is not a forum suited to providing legal advice and help, however, and you'll need to work with an attorney who can review the facts in depth with you and then help guide you through the issues discovered.... Read Answer

My condolences to you. If you and your husband were actually legally married at his death and he had never had any children, then you would have been his only heir. If he did not have a Will (it sounds like he didn't), then none of his other family members would have been entitled to receive any assets from your husband's probate estate just because they were family. If he owed legitimate debts to family members, then those family members would have been entitled to be repaid before you could keep your husband's assets, but it sounds like they just ran in and took things. You can try to recover his assets, but unfortunately you should have taken action when this actually happened. Legally, you may still have rights, but in reality those assets are probably long gone and it may be difficult or impossible for you to recover them. You should consult an experienced probate attorney in person if you want to pursue this, and do not wait any longer. Good luck to you. ... Read Answer

The short answer to your question is "maybe." You haven't provided nearly enough information for me to be able to have a good idea of the exact situation. If your father is still alive, you cannot challenge his Will unless he is deceased. If he passed away recently and his Will has not yet been admitted to probate by the appropriate probate court (which, if he resided in Bonaire, Georgia, would be the county probate court of the county where Bonaire is located), then, as one of his heirs, you should be able to challenge the Will. In order to do so successfully, however, you will have to be able to prove that either the Will was not validly executed in accordance with Georgia law, or that for some reason the Will, even though executed properly, should not be viewed as your father's actual intent. Showing that a validly executed Will does not reflect a deceased person's intent generally requires a showing that the person was unduly influenced by another person, or that he was forced to sign the Will, or that it was forged, or that he was mistaken about some critical fact and that the Will would like have been different if the mistake had not occurred. These can be very difficult to prove. As a child of your father, you are one of his heirs under Georgia law. However, you being an heir does not mean that your father is required to leave you anything under his Will. If the Will is validly executed and you are not able to show that it should not be viewed as actually expressing your father's intent, then the mere fact that you and your daughters are not beneficiaries under the Will does not really give you any grounds to challenge it. Georgia law allows a minor child to make a claim against a deceased person's estate for a "year's support." However, if you are over 18 you can't even make that claim. Georgia residents are free to disinherit their children if they want to. If you do think you have a good chance at a successful challenge, you should talk to an experienced estate attorney about the details of your matter. You will also need to consider the possible results of a successful challenge, however. If your father had few or no assets which became part of his probate estate (such as if he used a funded Revocable Trust, or if most of his assets passed to others at his death under rights of survivorship and/or beneficiary designations), then a challenge to his Will, even if successful, may still leave you with nothing. In addition, this type of challenge can destroy any family relationships you may have, if other family members are receiving benefits under the Will.... Read Answer

Generally, a person who holds a life estate in property is responsible for most of the same items that an owner of 100% of the property would be responsible for, such as the upkeep, taxes, and insurance you mention. However, there are some items for which you may be able to receive contributions from the holder of the remainder interest (i.e., the person who will receive the property at your death). If you have questions regarding specific items, you should consult an attorney in the state where the life estate is held, and have that attorney review the actual facts and circumstances under which the life estate exists.... Read Answer

My condolences on your loss. If your father had his primary residence in Georgia at the time of his death (if not, I really can't answer this), the answer to whether a Will must be filed is basically this: No, not while he is still alive, although a living person's Will CAN be filed "for safekeeping" with the probate court of the county where a living person has his primary residence. To find out whether a Will was filed for safekeeping, you can call the appropriate probate court or go there in person, let them know that your father is deceased and provide a copy of his death certificate, and ask them to check and see whether any original Will was filed for safekeeping with the probate court. If there was, you should be able to get a copy of the Will, and the person nominated as Executor will be asked to come and get the original. After a person's death, Georgia law requires that a Will either be offered for probate (if there are any assets in the probate estate - that depends on what the person owned and how he or she owned it) or filed "for informational purposes only" with the appropriate probate court within a "reasonable" period. Again, you can contact the appropriate probate court and ask whether anything has been filed for a deceased person, either for probate or for informational purposes. But if nothing has been filed, you may just have to search your father's possessions or deal with whoever had access to them. If no Will is found, no estate has been opened, and you think there may be some probate assets, you can seek to be appointed as an administrator or temporary administrator of his estate. If anyone has a Will they've been keeping hidden from you, that should flush them out of the woodwork. I would strongly advise you to get legal counsel in the state where your father had his primary residence at the time of his death, however. Good luck to you.... Read Answer

My condolences to you on your loss and on the extra distress your sister appears to be causing you. It's not clear from your question whether your sister ever took any steps to get appointed as Executor, or whether she got appointed but then went incommunicado. I very strongly suggest that you contact an experienced probate attorney in the state where your father had his primary residence and get a consultation. The attorney can ask you questions about the situation and will then be in a better position to advise you on what steps you may be able to take. Please don't wait any longer, however, as these matters can be time-sensitive. As one of your father's children, you likely had rights at some point and you may still have some, but if you've already tried talking to your sister on your own you really, really, really need to bring in an attorney to help you out.... Read Answer

My condolences to you on your loss, and on the extra trauma which your family is going through as a result of your mother's actions and your father's reaction. Unfortunately, I do not believe that it is illegal to send cremated remains to another person, as they aren't considered a harmful or hazardous substance. I don't believe that the motive is really important. However, you and your brother need to sit your father down and make him understand that, while your mother may not have been a perfect person, she was still your mother and you will be hurt and dismayed by his actions if he does what he is planning to do. If that fails, perhaps you can take the ashes, or portions of them, so that you will at least have something left of your mother which you can deal with in ways you feel are more appropriate.... Read Answer

If there are assets which became part of a deceased person's probate estate (i.e., assets which did not become another person's property either through the operation of a right of survivorship or under a beneficiary designation, which would include many assets on which the deceased was the sole owner and possibly the deceased person's share of jointly held assets, if the assets were not held by the joint owners as "joint tenants"), then the Will must be admitted to probate in order for an Executor to be appointed, or the assets will just be stuck in the estate. In order for title to an asset to be transferred out of a person's probate estate to a creditor, heir, or beneficiary, a representative of the estate has to be appointed and take the appropriate steps. Title does not just magically transfer.... Read Answer

How old are you now? Your age affects your options. Depending on your age, you may have rights to recover assets from your uncle. It will be expensive and you will need a very qualified, experienced Georgia lawyer. To Your Success, Gale Allison, Principal AttorneyAllison Firm, PLLChttp://www.theallisonfirm.comhttp://www.linkedin.com/in/galeallison.com... Read Answer