Georgia Probate Legal Questions

I am sorry for your loss. A 401(k) account does not become part of the original owner's probate estate unless the estate was the actual designated beneficiary, so if you are actually the designated beneficiary, then no, the 401(k) account will normally pass directly to you and not through your son's probate estate. You will need to contact the plan administrator to find out what documents you need to produce. Generally, however, you will need at least a certified copy of your son's death certificate and a completed beneficiary claim form. You get the certified copy of the death certificate from the state where your son died, and you get the claim form from the plan administrator for the 401(k). The plan administrator will also tell you if they require additional documents.  ... Read Answer

It's not clear where you are in the process of contesting the Local 831's denial of your claim, but I would suggest making sure that you use their appeals process and submit your claim (including copies of the paperwork) in writing.   You may have been able to make a claim for child support arrearage from his estate after his death, but my guess is that the time period for any such claim has passed.  ... Read Answer

In order to find out whether a given attorney will come to you instead of you going to them, you need to contact the attorney's office. Some do so fairly routinely; others will do so only under special circumstances; and there may be some who won't do so at all. However, attorneys are not supposed to solicit business through this forum, so in order to find out if a given attorney will come to you, you need to contact the attorney's office directly. Best wishes to you.... Read Answer

I don't know what notice you are referring to; there can be a few different notices that run in any given probate matter. However, I am going to assume you mean the most common one: the Notice to Debtors and Creditors. In that case, YES, there is a waiting period after the Notice to Debtors and Creditors has finished running before you can distribute assets out of the estate or pay debts. The Notice to D & C runs for 4 consecutive weeks. Creditors who the Executor may not have been aware of have 3 months after that final publication date to make themselves known. If the Executor pays lower-priority debts or makes distributions to heirs during this period, and an unknown creditor comes forward and can't be paid in full, the Executor may end up becoming personally responsible for the unpaid portion of the debt. Therefore, I strongly recommend to my clients that they make only VERY limited payments out of the estate before the creditor claims period is over. The things that you can pay are usually things like (1) secured debts, like mortgages or car loans, so that the asset subject to the debt doesn't get lost in a forclosure or repossession, (2) funeral expenses, (3) attorneys fees and court filing fees, and (4) expenses necessary to protect and preserve the estate's assets (like electricity and gas service for a house that may be sitting empty, and insurance premiums to cover the estate's assets. After the creditor claims period is over, then it is usually safe to pay known debts, making sure you pay them in the correct order in case there end up being more debts than assets, file final income tax returns for the deceased person and the estate, and distribute the remaining assets to the heirs (if no Will) or beneficiaries (if there is a Will).  If you are asking whether it's okay to sell assets before the creditor claims period, as opposed to distributing them or using them to pay debts and expenses, then that's a different answer. You generally can sell assets that will be sold before the creditor claims period is over. However, any net sales proceeds need to be deposited into an estate account, and not distributed. If the asset is subject to a secured debt like a mortgage or car loan, the proceeds can be used to pay off that debt at the time of the sale; the rest of the proceeds, however, need to stay in the estate. Of course, the Executor needs to be careful to ensure that she has the power to sell without court approval, or that the needed approval is obtained.... Read Answer

Normally, a beneficiary has no right to control the Executor's decisions. The Executor's job is to ensure that the estate is administered properly and that the interests of creditors and other interested parties, including, but not limited to, beneficiaries are protected. As for your other question, however: if the spouse received a check directly from a life insurance policy, that money belongs to the spouse, not the estate, and the spouse is not required to pay for the funeral with that money. Same with Social Security benefits paid to the spouse: that's not the estate's money. The estate is required to pay the funeral expenses, not the spouse, and so if an asset was paid directly to the spouse as a beneficiary under a life insurance or from Social Security, the spouse can keep that money if he or she wants to keep it.... Read Answer

  This answer is based on Georgia law and may not be accurate for other states. It completely depends on the situation, but in general, if a deceased person was the sole owner of a house or other parcel of real estate, the person's estate needs to be properly dealt with before the property can be sold or otherwise disposed of. "Properly dealt with" may mean having the Will admitted to probate and an Executor, if there is a Will; filing a petition for year's support, if there is a surviving spouse or any surviving minor (under 18) children; getting an Administrator appointed for the estate, if there is no Will and if there are any debts or the heirs can't agree on a distribution; or filing a Petition for No Administration Necessary, if there is no Will, there are no debts, and the heirs wish to agree on a distribution that is different than provided by state law. In most cases, in other words, something needs to happen before a property owned by a deceased person can be dealt with. "Next of kin" only get to influence what happens in certain situations, and then only if they are heirs and not just relatives. If the deceased person owned the property jointly with someone else, as "joint tenants" (the deed must actually state these words, or otherwise make clear that the property is supposed to be held with rights of survivorship), however, then the surviving owner, if there is one, automatically becomes the sole owner of the property and is the only one who gets to have any say about what happens to it. In that case, the decedent's estate does not have any interest in the property. If property is owned by the deceased person and someone else jointly, but NOT with rights of survivorship and not as joint tenants, then the deceased person's interest in the property is in his probate estate, and the same issues discussed in the first big paragraph of this answer will still apply to his or her interest. The best thing to do when trying to figure out what needs to happen when someone dies owning real estate is to consult an experienced probate attorney. The attorney can ask for, and often help you find, the information needed to determine what has to happen, what options may be available, and how to carry out the needed steps as quickly and efficiently as possible. But DON'T just do nothing. That's almost never the right option.  ... Read Answer

You can file a petition to compel production of the Will. To do so, I strongly urge you to consult an estate litigator (I am not a litigator) for help. However, under the kind of circumstances you describe, it may well be that there aren't really any significant assets in the probate estate. The "she" you mention may well have taken steps to ensure that all assets were either in joint accounts with her name on them along with your father's name, in her name alone before his death, or set up to pass to her under beneficiary designations. If that is the case, then you can try to pursue her for wrongful actions taken before your father's death, but that's an even more difficult battle. You would still need to consult an estate litigator for help. Unfortunately, elder abuse happens often, and it's one of the more difficult and heartbreaking things to either stop while it's happening or have remedied once the victim dies. Best wishes to your family, and please accept my condolences on the loss of your father and on the extra grief this person's actions are causing you.... Read Answer

Please accept my condolences on your loss. I am not sure what your exact question is, but let me try to give you some general information that may help you understand the situation you describe. If a person dies with no Will, then the first step is for the heirs to determine whether she had any assets that became part of her probate estate. Her heirs will likely include that person's children who survive her, plus the children of any child who died before her and her spouse, if she was married at the date of death. An asset will become part of your mother's probate estate if (1) she owned it at her death, (2) no beneficiary designation applied to the asset, or the beneficiary designation designated her estate as beneficiary, and (3) no right of survivorship applied to the asset. If there are assets in the probate estate, then someone needs to be appointed as the administrator in order to legally deal with them. Administering the estate means finding any creditors, making sure all debts and expenses get paid in the proper order, and then, if there are any assets left, distributing them to the heirs in the correct proportions. If you and your sister are your mother's only heirs, then you would each receive half of any net probate assets. However: if your mother owned a bank account, then it is possible that either (1) the bank account was held jointly by your mother and your sister, or (2) your sister was designated as the beneficiary of the account. In either of those situations, the assets in the bank account now legally belong to your sister, and she can spend them like they belong to her. You might be able to try to make a case that the assets in the account belong to her estate, if you can provide clear and convincing evidence that your mother added your sister to the account only for her own convenience, and that she did NOT intend for your sister to receive all of the account at her death. However, it can be very difficult to present that evidence, and the law presumes that a joint account was created intentionally. You can petition the probate court to become administrator (or temporary administrator) of your mother's estate. However, I strongly recommend that you consult an attorney before doing so.... Read Answer

Whether your fiance needs to change his Will after you and he marry depends on whether the Will was written in contemplation of that event. That means, if the Will says something to the effect of "This Will is made in contemplation of my future marriage to X, and shall not be revoked or otherwise affected by any such event," he should be fine and the Will should remain in effect as is after the marriage. If the Will does not contain any such language, however, then it would be safer for him to execute a new one that contains that language or, if executed after the marriage, makes it clear that you and he are already married at the time the new Will was signed.... Read Answer

Yes, you and your siblings should seek legal advice. If your brother had his principal residence in Georgia and had no spouse or descendants, and no Will, then his parent(s) would be his heirs, if either or both parents are living. If neither parent is living, then his siblings would be his heirs (if any sibling died before him, then that sibling's children take that sibling's share). Heirs do not automatically become entitled to assets, however. First, the assets must be reviewed to determine whether any right of survivorship or beneficiary designation applies (including POD or TOD designations on financial accounts). Those control assets before state law does, and the surviving owner or designated beneficiary will receive any assets subject to those rights. Assets he owned that are not subject to a right of survivorship or beneficiary designation are part of his probate estate. The next steps is to determine what debts he owed and what expenses are payable from the estate. Those all get paid before any heir receives any assets from the probate estate. If assets are given to an heir before all debts and expenses have been paid, and some of those aren't paid in full, the administrator of the estate or the receiving heir can become personally liable to the creditor for the unpaid amounts. After all debts and expenses are paid, the remaining probate assets get distributed to the heirs. This needs to happen in the correct proportions. While Georgia allows someone to file for Letters of Administration on an estate without an attorney's help, having the help of a good attorney can help the administrator reduce the expenses and hassles of the process and avoid pitfalls.... Read Answer

There's not any reason or need to have a formal reading of the Will, so I wouldn't suggest hiring a lawyer to do that. What I do suggest is that the person appointed as the Executor under the Will hire an attorney to help them work through the process of offering the Will for probate and administering the estate. As part of the process of offering the Will for probate, I usually have my Executor clients provide copies of the Will to any heirs (the family members who would receive the probate estate under Georgia law if there was no valid Will are the heirs). That way, they can see what is in the Will for themselves. As for beneficiaries, if they are not also heirs, I generally suggest that the Executor notify them of their interests once the estate administration process has proceeded to the point where the Executor is almost ready to make distributions, if not sooner. As for what lawyer should be used to help with the probate and administration, if the attorney who wrote the Will is competent and available, the Executor may want to hire that attorney to help. However, the Executor is also free to hire a different attorney for that purpose. Other than the fact that the attorney who wrote the Will is likely familiar with it and with the deceased former client who it belongs to, there's no requirement that the attorney who wrote the Will be involved in the administration. It's the responsibility of the appointed Executor to make sure that he carries out the necessary steps to notify heirs and beneficiaries, get the Will admitted to probate, and get the estate administration carried out appropriately and completely.... Read Answer

What you need to do depends on exactly how the deed was worded. If it lists your name with your aunt's name (and no one else's name), AND if it says you and she own the property as "joint tenants," "with rights of survivorship," or in any way that clearly shows that a deceased owner's interest was intended to automatically pass to the surviving owner at the first owner's death, then you should only need a certified copy of your aunt's death certificate in order to show that you own the property. If her husband was also listed on the deed, then you may also need his death certificate, but it sounds like only two names were on the deed. If the deed does not contain language clearly showing that a deceased owner's interest is intended to automatically transfer to the surviving owner, however, then you may have a much bigger problem on your hands. You may need to open and administer your aunt's estate, and, possible, her husband's estate. If their Wills actually direct the property to someone other than you, of if there are no Wills and you are not the only legal heir to both (which you likely won't be, at least with regard to your aunt's husband), then you may not be the only current owner of the property. You need to take the existing deed and go to a good attorney, show the attorney the deed and any Wills or other documents you have from your aunt or her husband, and have the attorney help you figure out what you are actually dealing with and what steps you need to take to clear things up. This isn't a good situation to try self-help, or to seek advice in this kind of forum. Best wishes to you.... Read Answer

Without seeing the actual deed, and, possibly, without information about what happened after your husband's death, it is impossible for anyone to tell you what you would need to do in order to clear title to your house following the death of your husband so you can sell it. There are a few possible situations that could exist right now: 1. You and he owned the house as joint tenants with rights of survivorship (this must have been clearly stated in the deed), and there were no other owners. If that is the case, you automatically became the sole owner at his death and you should only need to produce a certified copy of the death certificate to show that you are the owner and can sell. 2. You and he were both listed on the deed, but it does not clearly state that you owned the property as joint tenants or with rights of survivorship. In that case, his interest is still part of his estate, and the executor or administrator of the estate needs to do a proper estate administration, including, but not limited to, a deed to transfer the ownership of his interest to you and to any other possible owners (heirs or beneficiaries). 3. He was the sole owner, in which case the whole house is now part of his estate. Again, the executor or administrator will need to administer the estate properly, and then execute a deed to transfer his interest in the house to the appropriate heirs or beneficiaries. If part or all of the house became part of his estate but there has been some estate administration, then there could be other situations that exist. Please consult with an estate attorney in person so the attorney can figure out the situation and help you with whatever may still be needed.... Read Answer

I don't have any idea what other lawyers' hourly rates are, so I can't answer your actual question. However, please note: many estate planning attorneys don't charge by the hour to prepare estate planning documents like a Will; instead, it is very common for these to be prepared on a flat fee basis. The best way for you to find out what any given attorney might charge to prepare a Will is to contact the attorney's office and ask. Be careful, however: you should consider the attorney's practice areas and experience in addition to other factors like price, convenience, and how much explanation the attorney provides before selecting an attorney. Don't go solely on price. Best wishes to you.  ... Read Answer

Your question does not have enough information. If your father has passed on, your question is really whether you are entitled to any of his assets as a result of his death. You don't state where your father had his principal residence; in order to try to provide some information I will assume that he had his principal residence in Georgia. If your father had a Will, you are entitled to the chance to challenge the Will if you don't believe that it's valid. If the Will is successfully offered for probate, you would also have the right to receive whatever is left to you under the Will, after any debts, administration expenses, and taxes are paid from his probate estate assets and after any higher-priority bequests made in the Will are satisfied. If he chose not to leave you anything under the Will, you aren't entitled to any assets. If no Will, then as one of his children you likely are entitled to some assets from the assets remaining in his probate estate after debts, administration expenses, and taxes have all been paid in full, and after any year's support award. You mention an annulment: I assume your father was not legally married at his death. If so, then no spouse could make a year's support claim. However, if there are any children under 18, the minors could make year's support claims. A year's support claim allows a spouse or minor child to step in front of creditors and other heirs. If there is no spouse or living children who are under 18, the your father's children are each entitled to a share of the remaining probate estate. If any children predeceased your father but had their own children, then the deceased child's children would receive the deceased child's share. Your father's probate estate includes only assets that he owned at his death that are not subject to either a right of survivorship or a beneficiary designation. A right of survivorship applies to most joint bank or brokerage accounts and to certain jointly-held real estate parcels (in Georgia, the deed has to clearly indicate that a right of survivorship exists; but joint ownership of an account automatically establishes a right of survivorship unless the account documents actually state that the right of survivorship is not intended to apply). Beneficiary designations usually apply to life insurance, tax-deferred retirement savings accounts (IRAs, 401(k)s, etc.), and annuities; they can also apply to regular (non-tax-deferred) bank or brokerage accounts, if stated in the account paperwork. A right of survivorship onlys transfer assets to another individual owner; a beneficiary designation can pay assets to an individual, a trust, or the probate estate. Only the probate estate is subject to the Will or to the laws of intestacy that apply if there is no Will.         ... Read Answer

The first place you need to start is with the deed to the house. That's going to determine what needs to be done and what the actual situation is. There may not be a least costly way to handle this, unfortunately, but you (or someone) does need to handle it. If the deed to the house was held solely by your stepfather, then the property is still sitting in your stepfather's probate estate. In that case, your stepfather's Will is likely going to need to be offered for probate like it should have been years ago when he died, and a proper Executor's deed done from his estate to your brother after the estate administration is carried out. If your stepfather had any heirs other than your mother at the time of his death (children from a prior marriage, for example, or other descendants), then you may need to track those people down or at least notify them by publication as part of the process of offering the Will for probate. Now, if the deed wasn't held solely by your stepfather, and if it was held as "joint tenants" with your mother, then his Will doesn't matter, and the house became your mother's property when she died. In that case, you only need to deal with her estate. This may need an administration, or you may be able to file a Petition for No Administration Necessary, depending on whether she has any creditors who are still owed money. If your mother and stepfather held the house jointly, but NOT as joint tenants, then you have a situation where the house is still half in his estate and half in her estate, and you may need to deal with BOTH estates. In order to protect yourself and avoid potentially expensive mistakes, I strongly advise you to get a good probate attorney, have the attorney sit down with you and review the deed, the Will, and the situation as a whole, and let the attorney advise you on what needs to be done to find the best resolution. Money spent on a good attorney will be well worth it.  ... Read Answer

In general, if you are the only person legally obliged to pay the debt before your death, then your probate estate becomes responsible for paying it after your death. If all of your debts are paid from your probate estate, then no one else needs to worry about them. If your probate assets are not sufficient to pay all of the administrative expenses and debts you have, then for the most part, the unpaid debts just have to be written off and they do not become someone else's responsibility. However, if an heir or a beneficiary receives assets from the probate estate and there are still unpaid debts, the unpaid creditors can go after the person who received the assets for the value of the assets. That is because beneficiaries or heirs are last in line to receive your probate assets; creditors come before them. When you die, someone (an Executor, if you have a Will, or an Administrator, if you don't have a Will) has to go through your assets to determine what becomes part of your probate estate. Certain assets may be transferred at your death under a beneficiary designation (like life insurance or an IRA usually do), or by a right of survivorship (typically, joint bank or brokerage accounts have a right of survivorship attached to them; certain, but not all, jointly held real estate can also have a right of survivorship attached to it). If an asset is transferred directly to an individual (not to your estate) at your death by a beneficiary designation or a right of survivorship, that asset does not become part of your probate estate and MAY not be subject to creditor claims (many, but not all, assets that pass by a beneficiary designation or a right of survivorship are protected from your creditors at your death). The Executor or Administrator is then responsible for figuring out what debts you have and ensuring that they get paid in the proper order (some debt has a higher status than other debt, and if they aren't paid in the right order and some debt remains unpaid, the Executor or Administrator can end up becoming personally responsible for some of the unpaid debts). This is part of the estate administration process (note: that's actually NOT part of the probate process; it's related but separate). Whether you have a Will or not does not affect the debt question, although it is generally a good idea to have one because it makes the process of getting someone appointed to handle your estate much easier and makes that person's job easier, too (if the Will is well-drafted and correctly executed, at least). That said: if there is a co-borrower on the debt, that person continues to also be responsbile for that debt, and if the debt is a secured debt like a mortgage or car loan, then the security interest still exists and can be foreclosed on if the debt is not paid.... Read Answer

Please accept my condolences on your loss. You can find out whether your biological father had a Will or not by contacting the probate court for the Georgia county where he had his principal residence (sounds like it was Forsyth) and asking whether there is a probate file for him. You'll need to give his name and date of death. You can also have someone search the deed records for any county where there may have been land to see if any property was in your father's name and, if so, what happened to it after his death. Unfortunately, however, if he had a Will and left everything to his wife, then the assets became hers and she was free to do whatever she liked with them at her own death (and if she didn't have a Will, the assets would go to her heirs, not to her late spouse's children). If he didn't have a Will, then one question is what happened with regard to his probate estate: if his surviving wife made a successful year's support claim, she may have received everything anyhow. Also, if he had no Will, then only his wife and his other children would legally have been entitled to any share of his probate estate. When you were adopted by your adoptive father, the legal relationship between you and your biological father was completed severed, and you would not be one of his heirs. If he had a life insurance policy that actually designated you as a beneficiary, the insurance company should have contacted you directly. If you didn't get any such contact, then you may not have been a beneficiary at all under the policy. There's not much you can do about that unless you can get someone to tell you the insurance company name and policy number. Best wishes to you.  ... Read Answer

Under Georgia law, if a person dies and has a bank account with only the deceased’s name on the account, the money belongs to the estate.  However, if the amount in the account is under $10,000, then the next of kin can sign an affidavit from the bank and the bank will divide the money equally among the next of kin without the necessity of establishing an estate.  ... Read Answer

From your question, I have to assume no one has established a probate estate for your grandfather or grandmother. If you are in line to inherit the property, you should pay the taxes before the land goes up for sale on the courthouse steps. You state that you have always paid the taxes. If you open an estate in the probate court, you will file a claim against the estate for the taxes you have paid through the years.    If you are not in line to inherit the property, but you want the property, you should buy out the interests of the heirs who will inherit the property.  Then, you can establish the estates for your grandmother and grandfather, ask that you be appointed administrator and you can handle all of the affairs involved with keeping the taxes paid, negotiating with the DOT and ultimately transferring the land into your name.     This is very involved work and you should enlist the aid of an attorney who specializes in probate work to help you. ... Read Answer

Find an attorney in the appropriate state who specializes in probate work, and contact that attorney to schedule a probate consultation. Even before you find an attorney, however, you can contact the probate court (or whatever court handles probate matters) in the state and county where your grandmother had her principal residence, and ask them whether they have a probate file for your grandmother. You can then ask how to get a copy of the documents in that file, if there is one. If nothing has been filed, then you will have at least some indication that no Will was offered for probate or other steps taken to administer the estate. If something has been filed, you'll be able to get copies and show them to the attorney when you meet.... Read Answer

There is no requirement in Georgia that a Will be "read," and so there is no requirement that all of any certain group of people have to be present if it is read. However, if you are an heir of a deceased person (a family member who, under state law, would receive assets from that person's probate estate if there were no Will), then in Georgia you are entitled to receive a copy of the Will if it is offered for probate. If a Will has been offered for probate but you weren't given a copy (which, unfortunately, does often happen when proposed Executors don't know what they are supposed to do), you can get a copy from the probate court. You can also demand one from the proposed Executor. You can then read it yourself.... Read Answer