Part 1 of Robby Hughes’s video series on how to prioritize your actions at the passing of a loved one. For more information please contact the Law Office of Robert W. Hughes & Associates at 770-469-8887 or visit our website at www.hughespclaw.com.
If someone dies leaving an original Will in your possession, Georgia law requires that you file the Will with the probate court in the county where the deceased person resided. However, the law does not require you to file the Will for probate. This decision must be made after carefully considering what assets are in the estate. Often, people will have assets placed in the names of more than one person. For instance, a husband and wife may own their house as joint tenants with right of survivorship, or less likely as tenants in common. Likewise, bank accounts may be in joint names with both spouses or a parent and a child. If assets are titled with multiple names on the ownership papers, generally speaking, the assets will belong to the people or persons who live the longest. You rarely need to probate a Will to transfer assets with multiple people’s names on them. Some exceptions to this rule are beyond the scope of this paragraph.
Therefore, the first step you must take in trying to determine whether you should probate a Will is to determine the character of the assets owned by the deceased person. If there are assets only in the name of the deceased person like real estate, bank accounts, or investment accounts without designated beneficiaries; you may well need an Order from the probate court to transfer the property into another person’s name. This can only be accomplished by offering the Will for probate and having an Executor appointed.
There are methods for transferring small bank accounts to the heirs’ names. Also, muniments of title can be filed to transfer real estate into an heir’s name, but usually these documents will not be accepted by a closing attorney if the property is sold. Therefore, you are usually best served by having an Executor appointed and transferring the real estate with an Executor’s Deed.
WE CAN PROTECT YOUR 2nd AMENDMENT RIGHT TO KEEP AND BEAR ARMS
We are pleased to announce that we have a Second Amendment rights attorney in our firm. Shawn Owen is an accomplished marksman and gun owner. He is also a member of the National Rifle Association. He has recently gained the training and experience to advocate for individuals’ rights to keep and bear arms. He is accomplished at creating gun trusts for guns that must be placed into a trust.
Shawn can ensure that Wills are written properly to allow the transfer of firearms to another person under federal law. Some firearms cannot be transferred by an estate to an individual without federal laws being followed. Shawn is trained to ensure that the executor does not violate federal law when transferring certain firearms.
One of our clients recently exercised his Second Amendment rights in defending himself during a home invasion . We are proud of citizen action like this and urge all of our clients to exercise their Second Amendment rights to protect themselves and their belongings. Call Shawn if you have questions concerning your right to keep and bear arms; to ensure that your will properly transfers your firearms to another; or if you are an executor or administrator and the deceased owned certain firearms that require special licenses or permits before you can transfer the firearms to another person.
Has Someone Nominated You to Be the Executor of Their Estate?
If someone has named you as the executor of his or her Estate, there are many considerations you should think about prior to accepting that appointment. Among them are:
- Is the Estate going to involve contentious parties? Are the heirs and beneficiaries on the same page as the matter moves forward? This, more than most any other item, should be a point of concern for you before accepting the nomination to be executor. As the nominated executor, you may retain counsel to assist you in offering the will to the probate court and defending the validity of the Will if it is challenged.
- How much time do you have to devote to handling estate matters? If the will is challenged, the litigation can take substantial time of yours and involve substantial financial resources from the Estate. As the nominated executor, you will be paid a fee for your time. Although it is not an exact calculation, you will be entitled to approximately 5% of the value of the assets in the estate as compensation for being the executor. You also can pay all attorney fees from the estate if your hire an attorney to assist you with the administration of the estate.
- Are you a beneficiary under the Will in addition to being the nominated executor? If you are a beneficiary under the Will, you must take extraordinary care to make sure that all of your actions are fair and equitable. Under Georgia law, you must make sure that where discretion is allowed, that you err on the side of benefiting the other beneficiaries rather than yourself. This is so even if all of you are to be treated equally. This normally arises in distributing tangible assets such as household items and mementos. Also, selling homes or cars to yourself or your immediate family can cause great concern if all beneficiaries do not agree with your decision or the price you have placed on the item. You can ask the court for approval before selling items if all beneficiaries do not agree.
If you have been nominated as the executor of a will, please call us at 770-469-887 to schedule an appointment to insure you are handling things properly. We work throughout the State of Georgia to insure that executors handle their duties properly. Remember, if you misstep, you may be personally liable for the money you cost the estate or a beneficiary.
CONSERVATORS HAVE A DUTY TO THE BENEFICIARY OF THE ACCOUNT
We are pleased to announce another successful outcome at trial. In our most recent case, a four year old child’s mother passed away leaving her a $100,000 life insurance policy. The probate court placed this money into a conservatorship account and placed the child’s guardian in charge of the money. When the child turned 18, she should have received the money remaining in her conservatorship account. Instead, she received nothing. Her guardian told her that the money had been spent on the child raising her. The court records indicated no authority to spend the money.
Our investigation revealed that the conservator had failed to fulfill her duties throughout the duration of the conservatorship. Further, the court had failed to monitor the conservator as required by law. At trial, we obtained the full $100,000 from the conservator and her bonding company in full satisfaction of our client’s demands.
Anytime a conservatorship account is established and the conservator does not properly account for the funds in that account, beneficiaries of the account have a claim against the conservator for the funds. A conservator by law must have a bond in place to protect the beneficiary. With proper legal representation, you should be able to recover the funds placed in your conservatorship account.
Please contact us if you have not received funds you are due from a conservatorship account. Also, if you are a conservator, contact us for guidance and directions on how to properly perform your duties so you do not run afoul of any of the laws here in Georgia.
It’s our pleasure to introduce our new video series, designed to help you get to know our firm – and our areas of practice – better. This is our first published video, if you have suggestions or requests for future videos, please let us know in the comment area below, or contact us any time.
Did your lawyer pay proper attention to your needs when you last had your will revised? Many lawyers advertise that they specialize in estate planning. Many of these lawyers advertise an extremely low price for estate planning. While it is important to pay as little as necessary for any goods or services, it is more important that the money you spend be spent wisely.
When creating a will, you should make sure that your attorney sits down and meets with you so that he completely understands your family situation. Are you married to your first wife? Are you in a second marriage? Do you have children from multiple marriages? Do you have heirs who cannot manage money? Do you have heirs who have special needs? Do you have children whose marriages are unstable? Are your assets liquid or highly illiquid and concentrated in real estate holdings? All of these questions should be part of your attorney’s interview with you when beginning preparations for a new will. If your attorney did not cover these matters, your will may well be deficient.
Most people want to ensure that their assets are left to the people who they love most, or the organizations they admire most. You need to make sure that your will is drafted so that the people you intend to inherit are the ones who receive the benefit of your estate. Too many times, estates are distributed to unworthy beneficiaries, in-laws who were never intended to inherit, or organizations that were not those you designated.
Please make sure your attorney has conducted a thorough review of your situation before preparing your will. If your current will was not prepared with the above situations considered, please call us to help you with your estate planning needs.
Last year, Congress made significant changes in the Social Security Act that now limits the options husbands and wives have to maximize their Social Security payments. In the past there were many different variants to be examined when deciding when to start your Social Security benefits. Do you start at age 62, or do you wait until age 70 or some number in between those two? Because of the different earning capacities of most married couples, it was always beneficial for the lower earning spouse to begin receiving benefits earlier than the higher earning spouse. This provides greater benefits once both spouses reach age 70 and provides greater benefit for the survivor of the two spouses. Now, Congress has changed the law to take away some of the options you had available.
At Hughes & Associates, we are not financial planners. However, we work with many reputable financial planners to make sure that our clients’ estate plans are thought through and are proper for each client. We do not use a cookie cutter approach in our estate planning. For more information, please contact us at your first opportunity.
EFFECTS OF THE ATTORNEY GENERAL’S FINAL RULE AMENDING THE REGULATIONS OF THE NATIONAL FIREARMS ACT
BY: SHAWN OWEN
On January 4th, 2016, Attorney General Loretta E. Lynch signed the Department of Justice’s Final Rule amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regarding the making or transferring of a firearm under the National Firearms Act (NFA).
In 2014, the ATF processed 29,191 applications from individuals for the manufacture or transfer of an NFA regulated weapon, while it processed 115,829 from trusts and legal entities. The current regulations at 27 CFR 479.63 and 479.85, which require fingerprints, photographs, and a law enforcement certification for individual applicants to make or transfer NFA firearms, do not apply to trusts or legal entities. On September 9, 2013, the Department of Justice published in the Federal Register a notice of proposed rulemaking. The proposed rulemaking would amend current regulations to “conform the identification and background check requirements applicable to certain trusts and legal entities to those that apply to individuals.”
The Department of Justice’s Final Rule essentially expands the current “identification and background check requirements [to] apply equally to individuals, trusts and legal entities.” However, the Final Rule eliminates the requirement that the Chief Law Enforcement Officer (CLEO) approves and certifies each NFA application.
Currently, the ATF requires any individual, but not trusts or legal entities, to obtain CLEO approval and certification before the applicant is permitted to make or receive an NFA firearm. Essentially, an application does not just require a clean background check, but also the approval of a CLEO who may, but is not statutorily required to, approve the same. Many proponents of NFA Trusts argued understandably that NFA Trusts were essential in many areas of the country due to the fact that some CLEOs outright refused to approve any applications. The Department of Justice admittedly “reassessed the need for CLEO certification and is implementing a new approach that focuses on notifying CLEOS.”
Although gun rights activists may initially celebrate the elimination of the requirement that CLEOs approve and certify each individual NFA application, we need to understand this came at great costs. First, the net cost for CLEO involvement in NFA applications will increase. The “ATF estimates that the total cost of CLEO notification requirement will be approximately $5.8 million annually ($0.5 million for individuals; $5.3 million for trusts and legal entities). The current cost of CLEO certification for individuals is approximately $2.26 million annually. Consequently, the final rule’s estimated net cost increase is approximately $3.6 million annually.”
Second, we may no longer argue that NFA Trusts are essential due to the fact that CLEOs are not required to approve or certify any individual application. This comports with the Department of Justice’s expressed goal of essentially treating individuals, trusts and legal entities the same.
The only relevant restraint imposed by the Final Rule is that the identification and background check requirements currently applied only to individuals, will now apply equally to trusts and legal entities. To accomplish this, the Final rule “requires trusts and legal entities to complete and submit to ATF a new form (Form 5320.23), photographs, and fingerprint cards for each responsible person before the trust or legal entity is permitted to make or receive an NFA firearm.”
The Final Rule defines a “responsible person’ as follows:
“[A]ny individual who possesses, directly or indirectly, the power or authority to direct the management and policies of the trust or entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or legal entity. In the case of a trust, those persons with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, or otherwise dispose of a firearm for, or on behalf of, the trust. Examples of who may be considered a responsible person include settlors/grantors, trustees, partners, members, officers, directors, board members, or owners. An example of who may be excluded from this definition of responsible person is the beneficiary of a trust, if the beneficiary does not have the capability to exercise the powers or authorities enumerated in this section.”
IS IT CONSTITUTIONAL?
Unfortunately, “the right to keep and bear arms has never been unlimited.” Nat’l Rifle Ass’n (NRA) v. ATF, 700 F.3d 185, 200 (5th Cir. 2012) (quoting District of Columbia v. Heller, 554 U.S. 570, at 626). The Supreme Court held explicitly in Heller that the Second Amendment protects an individual – not a collective – right to bear firearms; however, it did not extend to “dangerous and unusual weapons” not in “common use.” See Heller, 554 U.S. at 627; see also United States v. Miller, 307 U.S. 174, 178-79 (1939) (regarding short-barreled shotguns). Courts of Appeals have consistently found NFA weapons to be “dangerous and unusual.” See United States v. Henry, 688 F.3d 637, 640 (9th Cir. 2012); Heller v. District of Columbia (“Heller II”), 670 F.3d 1244, 1263 (D.C. Cir. 2011); United States v. Marzzarella, 614 F.3d 85, 94 (3d Cir. 2010); Hamblen v. United States, 591F.3d471, 473-74 (6th Cir. 2009); United States v. Tagg, 572 F.3d 1320, 1326 (11th Cir. 2009); United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008).
Further, the Attorney General’s issuance of the Final Rule is likely lawful, given that the Attorney General is responsible for enforcing the provisions of the NFA.
Many gun rights activists already condemn this Final Rule as a death blow to gun rights. This is simply not true. While the Final Rule certainly neuters the utility of NFA Trusts, it does not restrict an individual right to make or transfer NFA firearms. In fact, it expands the individual’s rights under the NFA by eliminating entirely the requirement for CLEO approval.
Further, the current ATF regulations already require that FFLs run a background check on any person picking up a firearm on behalf of a trust or legal entity. Therefore, arguments that this Final Rule unduly expands background checks mistakenly ignores the fact that individual transferees of NFA Trust items already have to undergo a background check.
Moreover, the Final Rule’s amendments to the current regulations require simply that “responsible persons for trusts and legal entities will undergo a background check as a part of the application process. Therefore, a responsible person will not have to undergo a background check at the time of the transfer from the FFL.”
Those who take issue with this Final Rule should take note that “only Congress can bring a weapon under the purview of the NFA” and “only Congress can remove a class of weapons from the purview of the NFA.” Therefore, those of us who disagree with the NFA should take issue with our legislature – not the ATF, nor the Attorney General.
- See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 214]
- See 78 FR 55014 (ATF 41P).
- See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 4]
- See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 5]
- See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 6]
- See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 214] [Emphasis added]
- See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 238]
- Congress originally delegated the authority to promulgate NFA regulations to the Secretary of the Treasury; however, Congress re-delegated that authority to the Attorney General. See 26 U.S.C. 7801(a)(2); 28 U.S.C. 599A(c)(l); see also 26 U.S.C. Chapter 53.
- See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 44] [Emphasis added]
- See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 75]
- See 27 CFR Part 479 [Docket No. ATF 41F; AG Order No. 3608-2016, p. 77]
Most of you will go through life without ever being issued a subpoena to appear at a trial and give testimony. However, for those who have been issued a subpoena, the process can be daunting. First and foremost, you must strive diligently to tell the truth. Sure, it seems easy to tell the truth. However, once you start trying to remember the events about which you are to testify, your mind begins playing games with you and you become uncertain as to whether the event you remember happens exactly as you are recalling it today.
Your mind is a wonderful thing. Whenever you truly cannot remember complete events, your mind will fill in the blanks many times simply to allow things you do remember to connect and make sense. Therefore, when called upon to testify, you start second guessing whether you actually recall the event happening or you only recall bits and pieces of the event and your mind is filling in the blanks for the remaining items.
Countless surveys and studies have shown that much of what you do remember actually did not occur as you remember it. That is why trial lawyers may call multiple witnesses who will testify to the same event. You will discover that each of your remembrances is slightly different than your fellow witness’s remembrances.
In preparing to testify if you have any tangible evidence that will help you refresh your memory or recall, locate that evidence and review it. You may have a tangible item that was created as part of the event. It might be a dent in your car. It might be a broken tool, a torn shirt, a diary. Pulling that item out, or viewing that item, might well refresh your memory as to what happened. Talking to other people who witnessed the event may help you recall something about the event that you did not independently recall. Reviewing e-mails and letters you may have written to others after the event will also refresh your memory as to what occurred.
The lawyer’s goal in seeking your testimony is to have you repeat to a judge or a jury your exact recollection of what you witnessed. Generally speaking, the lawyer is not interested or looking for your opinions. The lawyer certainly is not looking for you to fabricate facts. The lawyer generally does not expect you to recall the entire event, unless you were the focus of the event, and even then, it’s not unusual to forget parts of what occurred. Each witness will remember parts of the event that you don’t remember. It is through all of the witnesses’ testimony that the judge or a jury finally can piece together a complete event.
If you are issued a subpoena to appear at trial, you should dress appropriately. That does not necessarily mean your Sunday best, unless you wear your Sunday best every day. You should dress comfortably. If you have a uniform of some sort that you wear to work, generally speaking it is fine for you to wear that uniform to court. You should never wear shorts, tank tops, t-shirts or flip flops. People will be paying attention to you. Will you look believable? Think about people you see in public. Appearance makes the witness.
Show up ½ hour earlier than the subpoena commands and seek out the lawyer who issued the subpoena to let him know you are present.
Many times you will be excused from the courtroom until it is time for you to testify. This is done so that your testimony is not influenced by what you hear another witness testify to. Remember, I mentioned above how everyone remembers events differently? The court wants to hear your remembrance.