Georgia Probate Legal Questions

Did your mother's parents really both die at exactly the same time? If not, this answer may be different. I'll assume for purposes of this answer that they did, although that seems unlikely. I will also assume that neither of her parents had a Will. If a couple both died at the same time, without any Wills in effect, then Georgia law would provide that their heirs would receive their net probate estate (assets that become part of their probate estate and that remain after all debts, administration expenses, and taxes have been paid). If the couple has any children or other living descendants (including grandchildren, great-grandchildren, and great-great-grandchildren), then their heirs would include (1) any living child (like your mother) AND (2) the children of any child who died before them. It would NOT include beneficiaries of the estate of a child who died before both of them. So, under the facts you state, it sounds like, if your grandparents both died at the same time, with no Wills, survived by their daughter (your mother) and five children from one of their predeceased sons, then your mother is an heir and the five grandchildren are heirs. Your mother will be entitled to half (since there are only two children who will be counted for this purpose: your mother and the brother who did have children), and the five children from her deceased brother will divide the other half equally between them (assuming that all of them did survive their grandparents). You, as the beneficiary of your other's uncle's estate, are not an heir to your grandparents' estate because your mother survived you, and you wouldn't receive any share through your deceased uncle because he didn't survive your grandparents and did not have any children of his own, so he isn't one of your grandparents' heirs. If your mother intends to try to administer her parents' estates, she really should consult a good probate attorney. If she doesn't do things correctly, she can end up becoming legally liable to creditors or the other heirs.  ... Read More

If your husband takes steps before his death to ensure that neither his house, his truck, or any other assets he owns become part of his probate estate, then that minimizes the chance for his children to be able to cause trouble. Unfortunately, if he is not willing or able to take these steps, then yes, you may have to deal with the children after his death. As for the ex-spouse, she wouldn't have legal standing with regard to his estate except for the fact that you say their divorce agreement requires her to receive his pension. That makes her a creditor. However, if he has named you the beneficiary of the pension in violation of the agreement, AND IF he takes steps to keep other assets out of his probate estate, she may have a very hard time actually being able to do much other than try to sue you personally for the pension. Your husband needs to make sure that he has a good estate plan in place, and that he's taken whatever steps he can to make sure it works as well as possible. If he doesn't, then yes, you may have to notify his children, and they will most likely notify his ex. If he does set up his estate plan correctly and gets good advice and good legal help, however, then you may not actually have to deal with the daughters after his death.  ... Read More

In Georgia, if you die unmarried and without children, your estate goes to your parents if they are alive.  If they are deceased, then your estate goes to yoru siblings.  If they are deceased, but have children, then each siblings share will pass to the sibling's children in equal shares.  So, in your case, given that there were four siblings, each sibling gets 1/4 of the estate.  If a sibling is predeceased, then that sibling's share will go to his children equally.... Read More

I am very sorry for your loss and the extra stress of the situation you describe. If your father had no spouse, then normally his children (you, and any other children, if he had any) would be the heirs and the next of kin, and would have the right to receive both control of his remains and whatever assets remain in his probate estate after the payment of his debts, taxes, and any administrative expenses. The best way for you to get control of the ashes and belongings may be for you to open his probate estate. In Georgia, this means filing a Petition for Letters of Administration. You should then be able to seek to have the court force your grandfather's girlfriend to turn over the ashes and the belongings. Ideally, seek the help of a good probate attorney for help with the whole thing. Best wishes to you.... Read More

If your mother's Will was executed in New York at a time when she had her principal residence there, then it should not have become invalid just because she moved to Georgia. However, due to differences in Georgia and New York law, a New York Will often does not make the probate and administration process as smooth as it could be. One example, which I have run into a few times now in my practice, is that both Georgia and New York have a thing called a "self-proving affidavit." The self-proving affidavit is intended to let a Will be offered for probate without the would-be Executor having to also offer an affidavit from a witness to the Will stating that everything happened correctly. However, in Georgia, the self-proving affidavit must be signed by both the testator (the person making the Will) and the witnesses to the Will, all in front of a notary public who then notarizes the affidavit. In New York, only the witnesses have to sign the affidavit in front of the notary. So, a New York self-proving affidavit does not meet the requirements for a self-proving affidavit in Georgia, and we end up having to get an affidavit from at least one witness to the Will. If we can't locate a witness who is willing to sign the affidavit after a documented, diligent search for one, then we have to dig up two people who knew the deceased and are willing to sign affidavits stating that it does look like the deceased's actual signature on the Will. Both procedures add a significant amount of time and effort to having a Will offered for probate. In addition, many New York Wills do not contain broad enough and language to give the Executor as much power to act indepdently of the probate court as Georgia law allows. In that case, we often have to request (with the consent of every single heir, which is not always possible), we can ask the court to grant it, but again it adds a good deal of time and cost to the probate process. Finally, if she's made a big change like moving from NY to Georgia, she may also have other things in the Will she wants to change, so it is a good time for a review. In summary, she may not HAVE to update her Will, but it's a good idea.... Read More

I am sorry for your loss and for the apparently stressful situation that surrounded your mother's death. As one of your mother's heirs, yes, you would normally have the right to try to contest her Will if you do not believe that it is valid, or you believe that it does not accurately reflect her wishes and that she was essentially forced into signing it. However, if you have already signed something consenting to have the Will offered for probate, or if you received notice that it was being offered for probate, then your chance to contest may now be gone. If you want to get accurate information about whether you can still contest the Will, or what your chances of a successful contest will be, or how much it will cost and take to do so, then you really need to schedule a consultation with an estate litigation attorney (I do not do estate litigation, although I do deal with other estate and probate related issues). The attorney will need a lot more information that you either can or should post here. Keep in mind that the standard of competence to execute a Will is actually pretty low in Georgia. In addition, contesting a Will is often a long, drawn-out, expensive process. If you really believe that your mother's wishes are not being validly represented by the Will, however, then you may want to take on the risks of bringing a contest. A consult will help you figure out how strong your case may be, and what you may be facing to bring the case. Best wishes to you.  ... Read More

I can't actually tell what your question was, because it was cut off. However, if your father's Will was validly executed under Florida law at the time he signed it, and he was legally a Florida resident, the Will should still be valid even though he moved to Georgia at a later date. That being said, because there are differences between Georgia and Florida law, if your father is willing and able to do so, it would be a good idea for him to consult a good Georgia estate planning attorney in order to see what changes, if any, he may need or want to make. Changes can help make the probate and estate administration processes work more smoothly under Georgia law. They may also be needed if his situation or his wishes have changed since the existing documents were done. In addition, he should also consider getting a Georgia Power of Attorney and Advance Directive for Health Care in place, instead of continuing to rely on any older Florida documents. These documents, while again still valid after a move, tend to get stale, which makes it more likely that they won't be respected. They also can work more smoothly if they are drafted to reflect the laws of the new state; again due to differences in state laws. So, my suggestion would be for your father to get an estate planning consultation as soon as he's ready to do so.... Read More

If your father was truly not competent to make a new Will at the time he made one, OR if your brother was unduly influencing your father at the time the new Will was made (even if your father was competent), then no, the Will may not be valid. Until your father actually passes away, however, if he is a Georgia resident you are limited in your ability to do anything about the Will now. If you have a copy of his prior Will (or the original of his prior Will), hang onto it. Also, you may want to try now to start gathering evidence of your father's condition and your brother's actions, in case your brother tries to offer the Will for probate after your father's death and you need to challenge its validity. On a more pressing note, however, if your brother has actually pressured your father into making a new Will, then there may well be other activity going on, and this other activity may be threatening your father's finances and, possibly, even his physical and emotional safety and health. In many cases, a child who has a parent make a new Will disinheriting other children does not simply wait until the parent dies; they take the money and other assets before the parent dies, often by getting a power of attorney or trusteeship of a trust in place and then abusing the powers granted to improperly benefit the child. A person who is trying to influence a parent may also try to cut the parent off from other family members and from friends, and, in some cases, may actually neglect the parent's physical health and well-being or actively abuse the parent physically or emotionally. If you believe any of these activities are going on, then you should strongly consider taking action to protect your father from your brother. This may require you to seek appointment of a guardian and conservator for your father, possibly in addition to taking other legal action. You should consult an experienced elder law attorney who works on contested guardianship and conservatorship matters as soon as possible. If nothing else, you can learn more about the kinds of things you should be looking for--red flags that can mean something very bad is happening. Please don't wait if you are really concerned; your father's life, health, and money could all be at serious risk.  ... Read More

If the deed to a parcel of Georgia real estate says that the property is being transferred to "X and Y, as joint tenants," then that is sufficient to create a joint tenancy, and the deceased owner's interest transfers automatically to the surviving owner with no probate needed. However, when you say that the deed does NOT actually contain these words, although the attorney at the closing said it did, then what actually matters is the deed. If the deed just shows that the property was transferred to "X and Y" and there is no additional language such as "as joint tenants" or "with rights of survivorship," or that clearly state in some other manner that a deceased owner's interest is intended to automatically pass to the surviving owner at the deceased owner's death, then the property is owned as tenants in common. If the property you describe is held under a deed that does not actually contain the required language to create a joint tenancy, then unfortunately yes, the deceased owner's estate will need to be opened and administered, and the deceased owner's interest in the property will pass under either the Will (if there is a valid Will that is admitted to probate) or intestacy; or, if a surviving spouse and/or surviving minor child makes a successful claim for year's support and is awarded the property as part of that claim, the property will pass under the year's support award. My suggestion is to have a probate attorney review the existing deed and help you figure out what needs to be done to deal with the property (and the rest of the deceased owner's probate estate, if needed).... Read More

I hate to say this, but if your husband dies with the planning you describe in place, then yes, you may well end up with few, if any, assets coming your way. Your best option might actually be a divorce, where you could acquire rights to some of his assets under a property settlement. But, in Georgia, property claims that exist in a divorce context cease to apply after one of the spouses dies if the divorce is not final before that time.  You may be better off consulting a divorce attorney instead of an estate planning attorney. If your husband is willing to change his planning, and still competent to do so, then he should consult an estate planning attorney. Best wishes to you.... Read More

In order for a Will to be properly executed, the testator must be able to see each of the witnesses sign, and each witness has to see the other witness sign. The witnesses must also either (1) see the testator sign or (2) see the testator acknowledge to the witnesses that the signature on the Will is the testator's signature. Under the facts presented in your question, the Will would not be validly executed if the testator has already signed, one witness signs on one day, and the other witness signs on another day.... Read More

What you really do not want is the current lawyer representing you.  You should have had a written agreement with the attorney from the beginning.  Even if you had an agreement, an attorney is free to withdraw from a matter, even for a bad reason like he wants you to pay him more than the agreement provides for him.  You should immediately hire a new lawyer, get a written agreement from the lawyer concerning what he will be paid and what he will do for you.  Let the lawyer know exactly what you need him to do.  Most lawyers are perfectly happy to work for an hourly rate and that is what you should continue to look for.... Read More

A person must possess testamentary capacity in order to execute a will.  In order to have testamentary capacity, the person must know who their natural heirs are, what property they own, and be able to form a decided and rational desire for the disposition of his assets.  Included in this evaluation is whether the person is acting of his own free volition which means the person is free of the undue influence of another person and is not acting under any fraud or lies from any person.    ... Read More

Your fiance needs to contact the person who requested the acknowledgement and demand it back.  If that person will nto give it back, your fiance needs to file a notice of revocatoin of acknowledgement with the probate court.  You should have your fiance contact a lawyer who specializes in probate disputes immediately.... Read More

The simple answer is that you need to hire a lawyer in the area where the will is being probated.  Where you live is immaterial.  If the decedent lived in Virginia and the will is being offered for probate in Virginia, then a Virginia lawyer can help you.  If the decedent lived in Georgia, but had a Virginia will, and the  will is being offered for probate in Georgia, then you would hire a Georgia lawyer.... Read More

If the person who the Will belongs to used more than one version of his name, then no, the name on the Will does not necessarily need to match the other documents. My advice in that kind of situation is to use the preferred version of the name with an "a/k/a" for every other version, but that's not necessarily required. The part of your post that raises the red flag for me isn't the name thing. It's the fact that you say the new Will doesn't appear to have your father's handwriting on it and doesn't reflect what you thought were his wishes. If you really think that the Will your stepmother is producing is not your father's actual Will, then you may want to challenge it if she tries to have it admitted to probate. If you want to consider a challenge, then you need to find an experienced estate litigation attorney and talk to the attorney about the situation and your options. The name issue is not the one you should be worrying about.  ... Read More

You can, in the sense that you are legally free to do so, but I don't recommend doing so. Online or other software-based Will preparation services don't tend to deal with the differences from state to state very well, especially for Georgia, which has a number of things that are very different from most other states. In addition, ensuring that the Will is witnessed correctly can be difficult. Finally, a good estate planning attorney can help you spot issues that you won't generally think of on your own, and can tell you about planning options that you may like, but that you likely otherwise won't know are even available. These options can provide great levels of creditor and predator protection for your loved ones. I have seen self-help Wills that were better than nothing, I have seen self-help Wills that we pretty bad and may have even been worse than nothing, and I have seen attempts at self-help Wills that failed completely and weren't even actually Wills at all. If you do your own Wills, without the help of an attorney, you won't know what kind you have, and you may not find out if your Wills are worse than nothing or actually invalid until it is too late to fix the problem.  ... Read More

Depending on who the deceased person was with relation to you, and if you believe you know who has the Will, you may be able to petition the probate court to compel production of the Will. You may also be able to seek appointment as temporary administrator. However, also depending on who the deceased person was in relation to you and your brothers, and whether you and your brothers are beneficiaries in the Will,  you may not actually want that Will to show up. If a Will is witnessed and signed by persons who are beneficiaries under it, then the beneficiary/witnesses are generally allowed to serve as witnesses, but the benefits they would receive under the Will are automatically invalidated. So, if you were expecting the Will to benefit you, and you also witnessed it, you may find that the result of having that Will admitted to probate is that you don't get any benefit. If you really want to pursue whatever interest you may have in this estate, you really need to find an estate litigation attorney and get a consultation. The attorney will be able to get more information about the situation from you and can then give you some idea of what your options may be, and what pursuing those options is likely to involve. Best wishes to you.... Read More

IIf you have a will that identifies beneficiaries and any one of the beneficiaries is no longer alive, you should have a lawyer review your will to determine who will inherit instead of the deceased beneficiary.  It may be that the deceased beneficiary’s spouse or children may inherit.  It may be that the remaining beneficiaries share proportionately in the inheritance.  It might be that the share for the deceased person goes through the residuary clause.      Without knowing what happens to the bequest, you can’t be sure if it is going to go to the proper person now.  I would strongly urge you to see a lawyer and have the will updated to reflect that which you want today.  ... Read More

I do nto believe yoru idea is very sound.  The witnesses have already signed saying they saw you execute the will as it was when you signed it.  Sometimes, changes, or additions to a will after its execution will invalidate the will.  If you are uncertain about the validity of your wills, you shoudl ahve a lawyer review them and decide whether doing a new will makes sense.... Read More

Not sure what the question is, but if you have moved your principal residence from Florida to Georgia, it is a very good idea to update your Will, any revocable trust, and any other legal documents like a power of attorney and an advance directive for health care. Georgia and Florida differ in many respects, so a document that works very well in one state may work less well in the other state. However, assuming the Florida documents were well drafted in the first place, it isn't an emergency job to make updates: Georgia will generally allow the Florida documents to work at least reasonably well. But if you will be here for the long-term, it's best to update at some point.... Read More

Since you mention that your mtoher had a will, you should contact the probate court in the county where your mtoher lived and ask the court for help in demanding that the will be given to the court or even offered for probate if your mother owned any property.  You don't mentoin when your mtoher passed away, but it is unusual to try to probate a will within a couple of months of the passing.  If you are worried that your stepfather is going to steal things from the estate, you should have a lawyer write him a letter explaining that the estate needs to be probated and therefore, any property of yoru mtoher shoudl be left "as-is" until the will is offered for probate.... Read More