Georgia Probate Legal Questions

Usually, if a beneficiary of a life insurance policy predeceases the policy holder and there is no contingent beneficiary, the life insurance policy will pay the estate of the decedent and then ultimately to the beneficiaries of the estate of decedent. Probate may be required to allow administrator / executor to obtain the payout from the insurance company.... Read More

Please accept my condolence on the loss of your husband. As for your question, there is literally no way that anyone online can tell you what you need to do in order to sell your house, because the answer depends on how the home was owned at your husband's death. If you and your husband owned the house as joint tenants with rights of survivorship (which means that the deed not only lists both of you as owners but also that it contained language clearly stating that you owned the property as joint tenants or with rights of survivorshp- just your names without the other language means you owned it in a different kind of joint ownership), then the house is already yours and you can sell it without doing anything else. You will just need to provide a certified copy of the death certificate (the green copy with the seal on it) when you sell. If you and your husband owned the property jointly, but NOT as joint tenants, then his half of the property is part of his estate and you will either need to offer his Will for probate and get an Executor appointed for his estate in order to handle his interest in the house OR you will need to make a claim for a Year's Support and have his interest in the property awarded to you that way. If the house was owned solely in your name, or in only your trust, you don't have to do anything. If the house was owned solely in your husband's name, then you have to either probate or make the year's support claim, but for all of the property instead of only his share. If the house was owned solely in your husband's trust, then you shouldn't have to probate, but you will need to deal with the trust and make sure that the Trustee takes whatever steps are needed to either help sell the house or distribute it to you so you can sell it. Do NOT try to do any of those things on your own, and DO NOT rely on this answer. Get a consultation with an experienced probate attorney before you decide what to do or file anything with the probate court. The attorney will need to review the deed, the Will, and the trust and understand the actual facts of your situation and provide you with advice. Best wishes to you.  ... Read More

In most cases, a child can still inherit from a parent who gave up that parent's parental rights if the parent dies with no Will. The exception would generally be that, if the child is legally adopted by someone, then that child may  not be able to inherit from the biological parent and would instead inherit from the child's adoptive parent.... Read More

You, as the Executor, should be able to sell the property (you should check with your probate attorney to make sure you don't need court permission first). To carry out the transfer, you'll need to execute an Executor's Deed that transfers the property from the estate to the purchaser. I strongly recommend having a real estate attorney help with that; deeds are not good do-it-yourself projects.... Read More

No, you cannot deal with an estate without dealing with a probate court, at least not in Georgia. IF there is no Will, and if all parties agree, then sometimes you can file a Petition for No Administration Necessary and deal with the estate that way. But it's still a court proceeding. And if there is a surviving spouse or any surviving minor children, then it might also be possible to have the entire estate dealt with through a petition for year's support, instead of a full administration. But again, it's still a court proceeding. In any other situation, if there is a Will, then the Will must be admitted to probate before anyone has power to deal with the estate, and if there is no Will, then an administrator must be appointed to deal with the estate. If there is nothing in the probate estate because all assets were held by a trust of some kind, then you may not need a court proceeding to deal with the assets, but that's because there is no estate in that case, not because anyone agrees to avoid the court.... Read More

Yes, you must complete all of the estate administration tasks before filing a petition for discharge of a personal representative. That includes filing all needed federal and state income tax returns for the decedent and the estate. You may be able to make partial distributions before you file the tax returns, but you must file the tax returns before you close the estate.... Read More

Please accept my condolences on the loss of your relative. As for your question: If your cousin is nominated as Executor by the Will but the Will has not been offered for probate, then your cousin is not the Executor. You are only an Executor once a Will has been admitted to probate and the Executor appointed, sworn in, and issued appropriate paperwork. If you don't think that your cousin is going to be a good choice to handle the estate, then you may be able to challenge his nomination as the Executor. You may also be able to petition the probate court to compel him to produce the Will if he has not yet turned it over to the court. Contact the appropriate probate court and make sure whether the Will has been filed or not; if it hasn't, then you should contact an attorney and have the attorney help you with any further court actions to compel production of the Will or challenge the Executor's appointment. These are not good actions for self-help. Best wishes to you.... Read More

In cases like yours, where you may not have a good individual choice for Executor, I often suggest using a corporate fiduciary. This is either a bank or brokerage affilated trust department or an independent trust company. The actual costs will vary depending on what services they actually end up providing, but I think it's money well spent in many cases. If you have questions about potential fees, you should contact potential providers directly. Please note: In most cases, individuals are also entitled to fees for serving as Executor (or Trustee) and those fees can end up being in the same range as the fees charged by a corporate fiduciary. However, in many cases it is the individual fiduciary who ends up making mistakes or just not getting things done, so you can end up paying for worse service. Corporate fiduciaries aren't for everyone, but they are definitely for some people. Have an experienced estate planning attorney help you consider your estate planning. The attorney will generally have worked with a number of corporate fiduciaries and can often help you find some good options to consider and choose from. Best wishes to you.... Read More

Your husband needs to have his Will reviewed, to make sure it remained valid after your marriage and that it is validly prepared and executed. He will also need to make sure that he has any beneficiary designations up-to-date so that you are named as the primary beneficiary. Ideally, you should also have estate planning done for yourself. Any time you've had a major life event like a marriage, it's a good idea to get an estate planning consultation with an experienced estate planning attorney. That's the best way to be sure that you have a plan in place and that it will work the way you intend it to if a death or disability happens. Best wishes to you.... Read More

Please accept my condolences on the loss of your daughter. As for your question, if your daughter truly had no assets, only debts, then you likely do not need to open an estate for her. Just abandon any assets that she did have, tell any creditors that you know of that she has passed on but that no estate will be opened because there are no assets and so there will be no administrator or executor, and that's it. If she did have a Will, you need to file the original Will for informational purposes only with the appropriate probate court, as required by Georgia law, if you have the original Will. If she did not have a Will, then there may be no need to do anything. Essentially, you need to open an estate for someone if they have assets that need to be dealt with. "Assets" includes the usual items like real estate, a car, personal possession, and bank or brokerage accounts. It could also include a right to receive money, such as money from a lawsuit, a tax refund, or an asset sale. If someone truly has no assets, or if the assets they have are worth less than the debts they owe, then can be the best course of action for the family members who survive them NOT to do anything with the estate. Please note, however: If you really want to know what you may need to do, you should consult an attorney. This forum is not a substitute for an actual consultation with an attorney, because no one in this forum can actually ask you the questions and get the information needed to be sure that they are giving you the right advice. But it is possible that you may not need to open your daughter's estate. Best wishes to you.... Read More

Yes, you must publish the Notice to Debtors and Creditors. That should have been done before you paid the expenses, debts, etc, and you MUST publish it before you make any final distributions, without regard to what your accountant told you. The notice is required by Georgia law. You will publish the Notice in the legal newspaper for Fayette County Georgia. Ask the probate court if you don't know what newspaper that is. The Notice runs once a week for 4 consecutive weeks. After the 4th publication date, there is a 3 month period where creditors who you may not have known about have to make themselves known. Please note, however: If an unknown creditor shows up later, then you still have to make sure they get paid before beneficiaries get paid- the creditor loses its place in line with regard to other creditors if it notifies you of its existence after the claims period is over, but it does not lose its place in line before beneficiaries of the estate.... Read More

Please accept my condolences on the loss of your parents.   As for your question, yes, you could potentiall sue your brother as executor for failing to carry out his fiduciary duties. Based on your post, I can't actually tell you whether or not he HAS failed to carry out his fiduciary duties, but I certainly can tell you that you are entitled to hire an attorney to represent your interests in the estate and to ask for information. If it appears at that point that your brother is not doing his job correctly, then you and your attorney can petition the probate court to get him to provide an accounting or even possibly to have him removed and a new executor appointed. Hire an attorney who works with contested estates- generally you will want someone who can handle fiduciary litigation if needed, not just probate work.   A couple of side notes on your post: Your brother's attorney is not supposed to communicate with you, in general, so please don't take a lack of communication from your brother's attorney as a bad sign. Your brother's attorney represents him as Executor, not you as an heir or beneficiary, and he is not allowed to give you legal advice. That means in most cases the executor for the attorney will not do a lot of communicating with the beneficiaries. If you want legal advice, you are supposed to hire your own attorney. Also: an executor would not normally be in charge of distributing IRAs if the IRAs have designated beneficiaries. The IRA custodians generally communicate directly with the beneficiaries. The only time an executor would get involved with an IRA is if the estate was the beneficiary (not a good result, but it does happen). If the estate is the beneficiary of an IRA, then there's a lot of income tax consequences that have to be dealt with, and that can actually slow down the administration of the estate. And finally, 1 year and 3 months is not actually an overly long time for an estate administration, especially in the past 2 years.   So- go ahead and find an attorney who works with probate matters and fiduciary litigation. Have the attorney find out more about what's going on and advise you whether there is anything that it appears you should be concerned about, and then, if so, have the attorney advise you as to what steps you should consider taking next. Best wishes to you; I hope your family is able to get the estate settled in the relatively near future and without litigation.      ... Read More

Please accept my condolences on the loss of your wife. As for your question, it sounds like you are an heir to your wife's estate even if you are not a beneficiary under her new Will. Yes, you will likely want to consult an attorney who is experienced with fiduciary litigation and probate matters. You have rights and interests with regard to the estate and the best way to make sure that you protect those is to have an attorney advise you.  ... Read More

Please accept my condolences on the loss of your ex and please provide your son with my condolences on the loss of his father.   As for your question, your ex was legally entitled to leave assets to whomever he wished (I'm assuming he was a Georgia resident, but this statement is generally true anywhere in the US), as long as his Will was valid. If you believe that there are strong grounds to believe that the Will was not valid for some reason, then your son, as one of the heirs (along with your ex's current spouse and any other children who he may have had via birth or legal adoption) does have the right to try to challenge the Will. However, whether you can bring that challenge on his behalf is a somewhat different question. To do so legally, you would need to have the legal power to represent your son. You may have that power if he is under 18, or if he is legally incapacitated and you have been legally appointed as his guardian or conservator, or if he has signed a power of attorney that gives you that legal authority. But without knowing more about the actual facts of your son's situation, no one will be able to advise you as to whether or not you can sue on his behalf. You will need to get a consultation with a fiduciary litigation attorney in order to find out what options your son may have to make a Will challenge and what ability you might have to help with that challenge.   On a related note, if your son is under 18, then he has the right under Georgia law to file a Petition for Year's Support and ask for assets from his father's probate estate no matter what the Will says. This may give hiim the ability to receive more than he would otherwises. However, this is again something for which he will need to seek the help of a fiduciary litigation attorney. And timiing may be critical if he is near 18, because the Petitioin MUST be filed before his 18th birthday.   So, get a consultation for your son with a fiduciary litigation attorney. Soon. The attorney can help your son consider his options and the likely costs and risks of bringing a challenge or filing a Year's Support claim. The attorney can also help you determine what steps, if any, you can take on your son's behalf. Best wishes to you.  ... Read More

Please accept my condolences on the loss of your spouse. As for your question, you really shouldn't so much "rewrite" a Will as just do a new one. Unless you have some kind of irrevocable trust planning in place, you should be free to do new estate planning documents. Find an estate planning attorney and schedule a consultation. The attorney can help you consider your situation and your wishes, and can then help you develop an estate plan that reflects those and fits you. Ideally, that would mean a new Will, a Power of Attorney, and an Advance Directive for Health Care, to make sure that you have documents in place that will allow someone to help you if you ever become incapacitated as well as a Will that provides for the management and distribution of your probate assets after your death. The attorney should also review beneficiary designations with you, to make sure that those items are coordinated with the rest of your planning.  ... Read More

You don't actually file a claim in the probate court in Georgia during a probate anyhow, although you can provide the court with a copy of your claim. All you do to file a claim in a probate matter in Georgia is provide notice to the Executor or Administrator of the estate, if there is one. If there is not an open estate, then you need to try to figure out who the most appropriate person to receive notice will be and send notice of the claim to that person. That's about all you can do.   If your case, if you have a last known address for your attorney, you may want to send the notice to that address. If you can find any alternate addresses (check with the State Bar Association), you should also send notices to those addresses as well. Try to use a delivery method that requires a signature so that you have some proof that someone received your notice.   Best wishes to you.... Read More

Please accept my condolences on the loss of your father.   As for your question, your father's girlfriend was entitled to take her own possesions out of their home, although you are correct in that she was not supposed to take anything that was not hers. One problem that comes up, however, with personal property items like furniture, jewelry, clothing, electronics, and other household items is proving who something belongs to. In general, in Georgia, if an item was customarily used only by one person, then it's likely fair to assume that it belongs to that person, and if a person paid for all of a given item and also used it, then it's usually assumed that the person was the owner of that item unless there is some good reason to think that he intended it to be a gift to another person. But it's common for there to be disputes over who actually owns items like this, and there aren't easy ways to provie title for assets that don't have title documents, deeds, or accounts associated with them.   It is highly unlikely that you'll be able to have your father's girlfriend arrested or prosecuted for taking any of his personal property items. Even if you could prove that an item actually did belong to your father (which is difficult or impossible in many cases), the police and the criminal courts generally do not want to get involved in this kind of dispute. However, the Executor of the estate may be able to petition the probate court to have her return certain items, and the court may be able to order her to do so. You might then be able to get a sheriff to enforce the judgment if she is unwillling to turn over the property voluntarily. Please note, however: all of this costs money. Unless she took something of great financial value, or unless you are willing to spend money to recover items of great sentimental value, the overall best course of action may be to take less extreme measures, if any, to try to get the items back. You could start by having the Executor's attorney send a demand letter to her (or to her attorney, if she has hired an attorney regarding the estate). If you can list specific items that you want returned instead of just stating that you want your dad's property back, it may help. The attorney can also help the Executor figure out whether it's really worth taking additional steps to pursue the items if the demand letter is not successful.   Best wishes to you.  ... Read More

You could use a revocable trust, along with some beneficiary designations on your accounts, to try to avoid the need for your son to have to offer your Will for probate after your death. Whether you really need to do so, or whether you really want to take on the time and expense to create and fund the revocable trust (including retitling your home to the trust after the trust has been set up and reapplying for the homestead exemption after you've done that retitling), is a different question. And note: Probate in Georgia, with a well-drafted, correctly-executed Will and only one adult child, is not normally difficult or expensive. It is the administration of an estate or trust that take time, and you won't remove the need for administration even if you remove the need for probate.   Get an estate planning consultation with an experienced estate planning attorney. The attorney can discuss your concerns and your options with you, and the attorney can then help you set up whatever documents you decide to use. You won't be able to get the kind of planning help you need in this kind of forum, however- there's just no way for anyone to learn enough about you and your situation to give you real advice about what is best for you.  ... Read More

Please accept my condolences on your loss.   As for your question, if the deceased gentleman had a valid Will under which he left you something, then yes, you should have the right to receive the bequest. You will need to offer the Will for probate in the appropriate county. If his children have already opened his estate for administration (which it sounds like has happened if they have already sold the house), then you will need to HURRY. Find an attorney who helps with fiduciary litigation and probate matters, show that attorney the Will, and discuss the situation with the attorney. The attorney can then give you a better idea of what options you may have and what it may cost you to pursue them.  ... Read More

The process is simple, but gathering the necessary information might be difficult. Someone, presumably an heir, needs to apply to be appointed Administrator of the deceased person who owns the property. This means the person in whose name the real estate records indicate the owner is. If there are heirs who have died, the court will need to appoint a guardian ad litem to represent that deceased person's estate.  This is where the information gathering process gets very complicated.  The fact that your grandmother has been paying taxes relates to her ability to be repaid what she paid. It does not necessarily make her the owner.  You need an attorney specializing in probate work to get through this process.... Read More

Please give my condolences to your stepkids on the loss of their grandfather.   If he had no Will and there are no living children, then your stepkids will need to figure out whether there is anything in his estate and, if so, they will need to decide whether they want or need to open the estate for administration. They should try to gather as much information as they can about what he may have owned and what debts, if any, he may have had. If there is real estate, then they really do need to try to deal with the estate in some fashion. If not, then they may have the option of walking away if it looks like there isn't much there. They really should get a consultation with a probate attorney- opening an estate for administration and dealing with it is not necessarily that difficult a process, but it is one that has potential pitfalls, and having the assistance of an experienced probate attorney can be very helpful.  ... Read More

It's not clear to me whether your sister ever even actually got appointed as the executor of either of your parents' estates. Just because they may have had Wills nominating her does not make her the executor, and in a case like the one you're describing, where nothing else appears to have been done, she may well not have even offered either Will for probate.   You need to consult an attorney who can help with contested estates (look for one who handles fiduciary litigation as well as probate matters). The attorney can speak with you and try to figure out more about what has been done so far and then help you figure out what your options are. Unfortunately, this kind of situation is not one that can really be addressed in an online forum like this.  ... Read More

If the estate is pending in Georgia, merely walk into the probate court where the estate is pending and ask for a copy of the entire file.  Estate files are public records and anyone is entitled to a copy of the file. You will have to pay for it.  If you are seeking to correct an alleged wrong, any attorney is going to need a copy of the file anyway to start working on the matter.  Better to get a copy of the file now and try to figure out for yourself what is going on.  ... Read More