Georgia Probate Legal Questions

You should have been notified when your father's Will was offered for probate, yes. The only exception is that, if you were under 18 at that time, your notice would have generally been provided to a guardian ad litem- generally, an attorney appointed by the probate court to review the Will and represent your interests.  ... Read More

You don't stated whether there was ever a divorce. You also don't state where the deceased person had his principal residence. Both of those things are critical facts.   In general, for people who have their principal residence in Georgia, a legal divorce causes a former spouse to be treated as if she died before the person did under a Will that was executed during the marriage and that does not specifically state that it is intended to remain in effect even after a divorce. But if there was a separation but never a divorce, then the ex-wife is not an ex-wife; she's a current wife, and still has full rights. And other states may have somewhat different results even if a divorce became final.   Whoever is nominated as the Executor of the Will needs to hire an experienced probate attorney to help with this situation. That's the best way for that person to figure out who has what rights.  ... Read More

Please accept my condolences on the loss of your wife.   You should consult an attorney who works with probate and estate planning matters. You may not need to do anything to take your wife's name off of your property, but no one can tell you whether or not you will need to without looking at the actual deed. If the deed was written one way, you and she owned it as joint tenants with rights of survivorship and it automatically became yours when she died. If the deed was written a different way, then your wife's interest in the property is now in her probate estate, and you have different options for how to proceed with the estate, but you will need to do something.   As for putting your daughter's name on your property, you should get good estate planning advice before doing any such thing. The general rule is that you should NEVER, never, never, never add a child's name to your home. Never. Never. It creates both gift and income tax issues, it exposes your home to your daughter's potential problems, and it may prevent you from being able to access needed benefits for your own long term care someday. That said, if, after a consultation with an experienced estate planning attorney, you really still want to do it, you will need to get a deed drawn up. You should not try to do that yourself- doing a deed yourself is the easiest way to make sure that you can't sell or borrow against the property in the future because you've messed up the title.   Best wishes to you.  ... Read More

Your father placed great responsibility on your brother and entrusted him with a serious job.  The court will struggle to not appoint him after your father went to the trouble to nominate him as executor.  I have witnessed many good peopel waste thousands of dollars trying to stop an appointed executor from being appointed.  Unless your brother is in jail, or has been in jail for some kind of dishonesty issues, the court will likely appoint him.  You are better served hiring competent counsel to monitor your brother and at the first sign of anything improper file to have him removed.    ... Read More

Unfortunately, this kind of forum does not allow anyone to effectively answer a specific question like yours. You have posted a lot of information, but in a complex situation it's generally necessary for an attorney to probe to make sure that ALL of the potentially relevant facts are discovered before giving any legaly advice.   Here's an example of what I'm talking about: It sounds like your father's estate was never fully administered, since you say that his name is still on the deed to the property. One question, then is what DID get done with his estate, if anything. If he left property to stepchildren under his Will, but that Will was never admitted to probate, then it could actually be too late for that to happen now, since he died in 1987. If the Will was admitted to probate but the Executor never made the appropriate transfer out of the estate, then the stepkids may have actually received rights when the Will was admitted to probate, and thereby made legally effective, but it may still be necessary for the estate to be reopened in order for someone to property transfer the property. I can't tell from the information that you posted whether the Will was probated or not, and so I can't actually tell whether the stepchildren actually inherited anything.   If the stepchildren DID effectively receive rights to the property because your dad's Will was probated, then so did you and your brother Joel. If Joel had an interest in that parcel under the Will, then his interest would have passed either under his Will (if he had one, and if it was probated), or to your mother, as his only heir (based on the facts as you state them) if he had no Will at his death. BUT, if your father's Will was never actually offered for probate, then it may be that you and your mother and brother received ALL of his property and that it did not actually pass the way he wanted it to go.   What I would suggest is for your family to consult a real estate attorney to have the attorney help your family figure out how the properties in question are currently owned, and to help the family get any needed paperwork done to clean up the title. You likely also need to probate your mother's estate, so you should also have an attorney who can help with that- you may be able to find an attorney or firm that can handle both the probate issues and the real estate issues.   Best wishes to you, and please accept my condolences on the loss of your mother.... Read More

Your mother needs to hire an attorney. Unfortunately, there's really nothing I can tell you in this kind of forum that will give her any help. If your father was actually left an interest in the property, and if his interest was left to your mother at his death, then she likely has a right to a share of the sales proceeds. But that may not actually be what happened. There's no way to know what actually happened and whether your father actually received an interest that he was able to pass to your mother at his death without seeing the underlying documents. Your mother needs to consiult an attorney who is experienced in working with estates, including contested estates, as soon as possible. She shouldn't keep waiting. Best wishes to you and your mother.  ... Read More

Unfortunately, without being able to actually see the document that created the fund in question, it's not possible for anyone to be able to tell you whether the trustee has the right to withhold distributions. Too much depends on exactly how the fund is set up and what the controlling terms are. For example, if the money was really just a Georgia Uniform Gifts to Minors (or Uniform Trusts for Minors) custodial account that your son's grandfather set up with your son's father as the custodian, then your son's father may effectively have the right to control whether your son can receive or use the funds until your son turns 21. If the money was put into a Section 529 Plan account for your son's benefit, with his father as the owner of the account, then he may also have the right to determine whether a distribution comes out of the account no matter how old your son is. But, if the money was set up in a trust created by the grandfather during his lifetime or under his Will, then the terms of the Will or trust document may (or may not) give your son more rights to force his father, as Trustee, to make a distribution even if the father does not agree with his choice of school.   Your son can consult an attorney. The attorney can help him demand more information from his father about exactly how the fund is set up, figure out what rights he may have, and, if needed and possible, work to try to get the father to make the distribution or resign so that another trustee can step in. But in this kind of forum, it will not be possible for anyone to be able to tell him what his options are. (Please also note: if your son is 18, you likely can't sue the trustee for him- he will need to do it himself. However, you can certainly help him with finding and working with an attorney.)   Best wishes to you and your son.  ... Read More

Generally speaking, you need to open an estate in the name of the deceased person and have someone appointed administrator.  The administrator can then execute an Administrator's Deed giving the property to the heirs. If the people who paid off the house are not the heirs, they will need to file a claim against the house for the money paid towards the mortgage.  ... Read More

Please accept my condolences on the loss of your mother. As for your question, without more information it's not really possible to know exactly how your name and your sister's name got on the deed to your mother's house, but I will make some assumptions. If my assumptions are not correct, this answer will not be correct either. And, even if it is, you shouldn't rely on it- if you really want to know what rights your father might have versus the rights you and your sister might have, you'll need to actually consult an attorney. This is not a forum that allows for actual consultations. What I assume is this: Your mother died without a Will. She and your father owned the home as tenants in common, which means both of their names were on the deed but the deed did not contain the words needed to create a right of survivorship between them. So, when she died, her 1/2 of the house became part of her probate estate. Your father, you, and your sister were your mother's heirs. Your father either failed to file a claim for a year's support from her estate and ask that her interest in the house be awarded to him or he filed that claim but for some reason her interest in the house was not granted to him. For that reason, under Georgia intestacy law, her 1/2 of the property passed 1/3 to you, 1/3 to your sister, and 1/3 to your father. IF all of those assumptions are correct, then your father likely can't sue you now. UNLESS your mother died less than 2 years ago, the estate was not previously fully administered, and he's realized that he can still make the year's support claim and get her entire interest in the house that way. In which case, he CAN still make that claim for year's support and take the interests in the house away from you and your sister. You REALLY need to get a consultation with an attorney. It's really the only way for anyone to be able to understand exaclty what's going on and what rights and options you may have. Call an experienced probate attorney as soon as you can and get a consultation. Best wishes to you.    ... Read More

Please accept my condolences on the loss of your husband. As for your posts, in Georgia a married person is free to leave assets to whomever he wishes, for the most part. As a surviving spouse, you have the right to make a claim for a "year's support" from your husband's probate estate, but otherwise if he left a valid Will, then the Will will control. It sounds as if his intent was to leave property to a trust for your benefit, rather than leaving it to you outright. That kind of planning is often done in order to allow a spouse to benefit from property but to also ensure that any remaining property at the spouse's later death will go to the deceased person's other intended beneficiaries, such as a child from a prior marriage. So, it's entirely possible that your husband did not intend to leave you property outright. Unfortunately, without actually seeing your husband's Will, no one will be able to tell you exactly what it says or how it is intended to operate. You need to contact an attorney and have them review the Will. You may be able to challenge it, if you think it is not valid or not validly execute it. You may also be able to make a claim for a year's support and get access to assets that way. However, you should not delay- you only have a fairly short period of time to act if you want to make a year's support claim or try to challenge the Will. Best wishes to you.    ... Read More

Please accept my condolences on the loss of your husband.   You do not have to wait for your stepdaughter to offer your husband's Will for probate. You could either file a Petition to Probate the Will yourself, if she won't do it, or file a Petition for Year's Support against the estate. You could also file with the court asking that the court compel her to produce the Will. You have a number of options.   You really need to get an attorney to helpl you, ideally; preferably one who deals with contested estates as well as regular probate matters. But get started soon. Timing can be critical. Best wishes to you.  ... Read More

Please accept my condolences on the loss of your husband.   You do not have to wait for your stepdaughter to offer your husband's Will for probate. You could either file a Petition to Probate the Will yourself, if she won't do it, or file a Petition for Year's Support against the estate. You could also file with the court asking that the court compel her to produce the Will. You have a number of options.   You really need to get an attorney to helpl you, ideally; preferably one who deals with contested estates as well as regular probate matters. But get started soon. Timing can be critical. Best wishes to you.    ... Read More

Please accept my condolences on the loss of your mother.   As for your question, unfortunately it can be difficult to find a Will sometimes, if the person who made it was not careful (or was too careful) about whether she kept it. Here's about the best thing you can do to try to find out if a person had a Will or not: 1. Do as thorough a search as possible of the person's home, car, any safe deposit box, and any storage units- anywhere she may have kept anything, especially sensitive documents. Go through everything with a fine-toothed comb. Don't just look for a Will- look for cards or other info for attorneys or any other evidence that she may have worked with an attorney on a Will, look for drafts, etc. If you find an attorney's info, call the attorney's office and ask if they may have worked with your mother and that you are trying to find her Will after her death.   2. Contact the probate court for any county your mother lived in or previously lived in. When you call, do not simply ask if a Will is on file for your mother. Ask very specifically whether any Will was filed "for safekeeping" for your mother. If you just ask whether a Will was filed, the courts may not think to look in the safekeeping records and may overlook those.   3. If after taking the first two steps you still don't have a Will, then you can likely assume that your mother did not have a Will. That is possible- I have seen and heard of people who spoke of having Wills many times during their liives but then turned out not to have any. People do not always carry through on their intentions. Best wishes to you and your family.... Read More

Please accept my condolences on the loss of your mother and the loss of your sister.   As for your question: If your caveat fails and the Will produced by your sister is admitted to probate, then the Will she produced will likely be admitted to probate with a successor Executor appointed in her place, and the effect of your sister's death on how your mother's estate is distributed would be dealt with as that Will provides, if it makes any provision in that regard. But unless the next nominated Executor decides to withdraw your sister's Petition to Probate the Will, your sister's death would likely not cause the court to throw out the entire petition.   Wills do frequently contain provisions that are designed to deal with a situation where a beneficiary dies after the person who wrote the Will. For example, if a Will requires that a beneficiary survive the person who wrote the Will by a certain minimum period of time, such as 90 days, and that beneficiary survives the person who wrote the Will by at least that long but then dies after that, the beneficiary's estate will often end up receiving the property that beneficiary would have received. The property would then be subject to the beneficiary's Will (or state law, if the beneficiary had no Will). But, if a Will requires that a beneficiary survive by a certain period of time and the beneficiary does not make it that long, the Will would generally provide for an alternative disposition of that beneficiary's share. For example, in my firm's Will it is often the case that, if a child does not survive her parent by at least 90 days, the share that the child would have received if she survived at least the 90 days will instead pass to her children, if her children survive the person who wrote the Will by at least 90 days. That said, I have seen Wills that don't deal well, or at all, with cases where a beneficiary dies. Without seeing the Will your sister claimed to be your mother's, I have no way to tell what it might do.   If you are working with an attorney on your caveat, you should ask your attorney what happens next. If you don't have an attorney, you should really consider consulting an attorney who works on estate litigation- having someone who knows what they are doing can be extremely helpful in a disputed estate.   Best wishes to you.... Read More

Unfortunately, when your mother gave your sister and your sister's husband money with no contact and no interest in the home they purchased, she made a gift to them and did not retain any legal control. They can sell the house (or lose it in foreclosure) and she is out of luck. This is one reason why I tend to recommend to my clients that they not put their children's names on assets that they need for their own well-being, like a house: It puts the clients at risk of their children's problems. I am sorry for your mother's situation. Hopefully your sister and her husband will be able to live up to the moral obligation that they have incurred and will still be able to ensure that she has a place to live.... Read More

Please accept my condolences on the loss of your grandfather. In order to find out what, if anything, has been filed in a probate court in Georgia, you can contact the court directly and ask them what you need to send in order to get a copy of the file. You will need to contact the probate court for the Georgia county in which your grandfather had his main residence, give them his name and the date of his death, and ask them if there is a probate file open for him. If there is, then ask them how much it would be to get a copy of the file and what you need to do to request one. Once you get that, you'll know what was filed, if anything. If it looks like someone forged your name, then you need to contact an attorney who works with estate litigation in Georgia and find out more about your options for dealing with that issue. However, if your grandfather owned most or all of his assets either jointly with others, as joint tenants with rights of survivorship, or if there were beneficiary designations on assets that he did not own jointly with someone else, then there may not be any probate file, as probate may not have been needed. And, even if there was a probate, there could be substantial assets that were owned jointly under a right of survivorship or that passed to others under beneficiary designations. This means that a probate file by itself may not give you a complete picture of what he owned and how it passed. If you really think you may have been a beneficiary or an heir, and if you aren't sure that your rights are being protected, then hire an attorney who works with probate matters. The attorney can give you your options and help make sure that you find out as much as you can about whatever rights and interests you might have. Best wishes to you.... Read More

Please accept my condolences on the loss of your parents. As for your question, you may have a case, but in order to have any chance of actually recovering anything you need to hire an estate and trust litigation attorney as soon as possible. I'm sorry for the short answer, but the longer you wait the less chance you have of being able to recover anything even if you win your case. Best wishes to you.... Read More