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Probate and Trusts

What can you do if an executor or ADMINISTRATOR is not performing his or her job?

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What can you do if an Executor or Administrator (Personal Representative) is not performing his job? Executors for an estate are nominated in the Will to handle all estate matters. The Executor must be approved by the Probate Court as part of probating the Will. Administrators are appointed to handle an estate when a person dies without a Will (intestate). Wills may give an Executor enormous latitude and discretion in how he handles the Will, while Administrators usually have far less discretion on how an estate is handled. All Personal Representatives must comply with Georgia Probate laws. As a general rule, Personal Representatives are supposed to conclude their duties in about 6 months.  However, there are exceptions.

 

If you are the heir or beneficiary of an estate and feel that the Personal Representative is not performing his job, you have a few options. The primary remedy you have is to bring the Personal Representative before the Court by filing a Petition for Settlement of Accounts. This can be filed no sooner than six months after the Personal Representative obtains his Letters. Once you file that petition, the Court will command the Personal Representative to provide you with the full accounting of his work as a Personal Representative and further will command the Personal Representative to conclude the estate quickly. If the Personal Representative cannot provide an accounting, or will not distribute the estate quickly, the court may remove the Personal Representative and appoint another person to handle the estate.

 

We just concluded a matter in Probate Court where the Personal Representative had been in charge of an estate for almost a year,  but failed to perform any duties. The home of the deceased deteriorated in that time because it sat vacant. The bank account had not been closed, nor had the estate bills been paid. The Court removed the Personal Representative and appointed our Client to conclude the work.

 

Should you find yourself in a similar situation, contact Hughes and Associates at 770-469-8887 for assistance.

Why You Should Consider Filing for A Year’s Support

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You should complete Ga. Probate Form No. 10.

Georgia probate forms are required when filing petitions with the probate court. Use probate form No. 10. You must be specific in requesting the property that you want the court to award you. You may ask for real estate or personal property. The law requires you to value the property you are seeking. You also must serve the petition on all persons who would be affected by the granting of the petition. This includes all creditors of the estate, beneficiaries under the will and all heirs at law. The standard for an award of year’s support, if there is an objection, is that the “award must be reasonably related to the amount needed by the surviving spouse for a period of 12 months after the decedent’s death to maintain the standard of living enjoyed prior to the death. Such award is not intended to compensate the surviving spouse for the death, support the spouse for many years to come, or provide a method for distributing the estate.” Courts view the petitions stringently.

You are limited in the amount you can seek in a petition for year’s support.

“As we have found, a claim for year’s support is not analogous to a tort claim where general damages can be awarded based on the enlightened consciences of impartial jurors. Nor is it a claim for loss of consortium where damages are not capable of exact pecuniary measure and are left to the enlightened conscience of impartial jurors.” Taylor v. Taylor, 288 Ga.App. 334, 337, 654 S.E.2d 146, 149 (2007). The court will grant a petition for year’s support as filed if there are no objections filed to the petition. The success of the filing requires that any person who files an objection be dealt with appropriately. Many times, there will not be any objections filed by creditors. If a creditor files an objection, you should contact that creditor and resolve that creditor’s claim. Your goal is to convince the creditor to withdraw its claim. If an heir or beneficiary files an objection to the petition, you should attempt to resolve the issue with the objector.

You can save on the ad valorem taxes on your real estate
If you cannot resolve the objection, there will be a hearing where you will be required to present evidence of the amount that is reasonably related to the amount needed by the surviving spouse for a period of 12 months after the decedent’s death to maintain the standard of living enjoyed prior to the death. The courts have held that the trier of fact must “take into consideration the following: (1) the support available to the person, for whom the property or money is to be set apart, from sources other than year’s support, including but not limited to the principal of any separate estate and the income and
earning capacity of that person; and (2) such other relevant criteria as the court deems equitable and proper. Holland v. Holland, 267 Ga.App. 251, 254, 599 S.E.2d 242, 245 (2004). If you have received insurance proceeds or property by way of a joint tenancy, the value of these transfers is included in the above calculation.

You must settle with all creditors and heirs.
There are several purposes in asking for an award of year’s support. The first reason to file a petition for year’s support is that it allows you to take the assets of the estate before the payment of any of the debts of the estate. This includes general creditors, but excludes the final expenses and expenses of administration and the payment of secured creditors, which come before an award of year’s support. The second reason to file a petition for year’s support is that it allows you to claim the real estate free of any ad valorem taxes in the year of the decedent’s death or the following year, whichever you choose. This can be of significant benefit if the property you wish to transfer is located in a county with high ad valorem taxes. Finally, filing a petition for year’s support allows you, and usually your children to ensure that you take full control of all of the assets of the decedent in lieu of provisions to the contrary in the will.

Renunciations are allowed under Georgia law.
This subverts the will of the testator and therefore, requires complete consent by all persons affected by the petition. If the decedent dies owning real estate as a joint tenant with right of survivorship, the survivor can renounce the property she would have taken by operation of law. You can then file for year’s support to obtain the property without the payment of ad valorem taxes during the year of the transfer. IRC § 25.2518(c)(4)(i), states that the surviving joint tenant may disclaim the one-half survivorship interest in real property held in a joint tenancy with right of survivorship within nine months of the date of the first joint tenant to die. O.C.G.A.§ 53-1-20(b), provides that “any person . . . who succeeds to property by contract or by operation of law may renounce the property in whole or in part as provided in this Code

Is it time for guardianship for your mother or father?

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There comes a time in many of our lives when we believe our parents are unable to care for themselves any longer. If you are in that situation, you should understand what you can do outside of having legal authority over your parents and what you can do if you have a court Order.  This article will hopefully help you understand that.

The first thing that you should do is ensure that your parents have a Durable Power of Attorney for their financial affairs, as well as an Advance Healthcare Directive for their medical affairs. These documents must be completed and signed by the person appointing another to make decisions.  These documents must be signed while that person is legally competent.  It is too late after that person lacks capacity to make decisions for themselves.  Therefore, while your parents are younger and in good health and spirits, sit down with them and urge them to create these two documents.  The person appointed by these two documents, generally speaking, will never need a court Order for any purpose.  As with all rules, there are exceptions to this generalization.  If you have a Durable Power of Attorney for your parents’ financial affairs, most businesses, banks, and institutions will accept this power in lieu of your parents actually participating in whatever business transaction you are conducting.  If you have an Advance Healthcare Directive, medical providers will work with you to assist your parents. Hospitals will accept the Advance Healthcare Directive and allow the appointed person to begin making medical decisions for their parents. However, here we are talking about how to handle the situation if your parents have failed to generate these documents.

A guardianship is a court ordered position where the court has found your parent lacks capacity to make reasonable decisions for themselves. This generally will occur when the person can no longer feed, clothe, bathe, take medications and otherwise generally care for themselves. There is no absolute standard for guardianship. It is left to the discretion of the judge after hearing testimony from interested people, including the person over whom the guardianship is proposed. You should consider seeking a guardianship for your parent whenever they begin making irrational decisions or when the medical providers tell you they can no longer accept your directions for your parent. With the new HIPPA laws, doctors and hospitals are prohibited from sharing a person’s medical records with anyone. Unfortunately, this covers the situation of children taking care of their elder parents. You will probably notice your parents need for a guardianship first as it relates to their financial affairs. They will begin either giving their money away (or hoarding their assets) through irrational decisions. Each is a common characteristic of a person who is losing their capacity to manage their affairs. Guardianship hearings in the Probate Court are very emotional hearings. Rarely does the person over whom the guardianship is proposed want the guardianship imposed on them.

One condition for which a guardianship will not be granted is when a person quits taking his medication.   In some instances, people have been diagnosed with mental illnesses and prescribed medications to control that illness.  So long as that person takes the medication, they are generally, fine, but when the person stops taking this medication, they become irrational or uncontrollable.  The court, generally speaking, cannot impose a guardianship over that person because while on medication, they are perfectly safe to be alone and are capable of caring for themselves.  Furthermore a guardianship does not give the Guardian the power to make the ailing person take medications.  There are no laws on the books that can be used to force a person to take drugs they do not wish to take.  Therefore, you cannot use a guardianship as a means to enforce some type of medicine therapy. The court is taking the individual’s rights away as it relates to that person’s ability to make decisions about living arrangements, doctors, and generally any other normal day-to-day decisions that most of us take for granted. Because of the seriousness of this Order, many safeguards are in place to ensure that the person who’s rights are going to be affected has representation at the trial as well as, in many cases, another person appointed to generally investigate the condition of the person. These trials might take an hour or many days depending upon the issues to be decided and the evidence to be heard. Generally, guardianships are quite expensive.

Included with the general topic of guardianship is also a conservatorship. Conservatorships are simply guardianships over a person’s property, whereas a guardianship is control over the person himself. The two positions are usually asked for in the same decision and evidence as to both positions are heard in the same trial. The standard used to determine whether a Guardian is needed or whether a Conservator is needed is slightly different. Therefore, there are instances where one may be granted, a conservatorship but not a guardianship, or the other way around. In most cases, both positions are either granted or denied. Any adult relative can file for guardianship with the preference being the spouse of the ailing individual and if there is no spouse, then adult children of that parent.  If none of the children are willing to seek guardianship over their parents, then, any other interested person may apply and in some case, even the State will apply to take control over the parents.  This is the last resort and hopefully not one that anyone is subjected to.

If you have need help with the guardianship or conservatorship, feel free to call our office to speak to one of our attorneys.

 

 

Vote NO to Amendment THREE This November

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VOTE NO TO Constitutional Amendment THREE

The Georgia General Assembly, apparently upset that one of its members had been removed as a judge by the Judicial Qualifications Commission (JQC), has decided that the JQC is corrupt and does not properly discipline the judges in this State. The Legislature’s solution for the problem they described is to allow the legislature to choose the members of the JQC. This allows politics to become the primary driving force behind the JQC.

As it is established, the JQC is a model that many other states have copied. It has successfully removed many judges through the years. It has punished many more for conduct it found improper. The current JQC comprises seven members, two sitting judges, selected by the Georgia Supreme Court, three lawyers who have been working for at least 10 years and who are elected by the State Bar of Georgia Board of Governors, and two citizens, neither of whom shall be members of the bar and who are appointed by the Governor.

Lawyers expect judges to maintain the integrity of the bench. It is the cornerstone of all justice.  I expect it when I appear in Court.  All other attorneys expect the same. All trial lawyers expect that judges will comply with all rules of behavior. It is the only way we have an orderly judiciary and judicial system.  It guarantees that people appearing in court receive a just and proper hearing. All lawyers ask that the scales be balanced as their clients appear in court: nothing more and nothing less.

The JQC must remain free of political influence. Only if politics stays out of the business of disciplining judges will judges remain free to deliver decisions based only on the laws of the State of Georgia. I urge you to vote no to Amendment 3 on the November ballot.

HOW DO I KNOW IF I SHOULD FILE A WILL FOR PROBATE?

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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

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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.

Conservators Have A Duty To The Beneficiary Of The Account

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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.

DID YOUR LAWYER PAY PROPER ATTENTION TO YOUR NEEDS WHEN YOUR WILL WAS CREATED?

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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.

Have you been called as a witness for a trial?

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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.

Assistance during Probate Court Approval for Injured Ward

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We are pleased to announce the successful establishment of a guardianship and conservatorship for a severely injured adult. The injured person was severely injured in an accident involving a tractor trailer. As a result of his injuries, the injured party will require extensive daily care into the foreseeable future.

We were retained by the lawyer for the injured victim to assist in establishing the guardianship and conservatorship so that the personal injury claim could be prosecuted fully. We are happy to report that the injured person’s family, their spouse, has been appointed as his guardian and a private fiduciary who is bondable to more than $5M has been appointed as the conservator. This fast action on our part has led to the payment of some of the proceeds already and allowed the personal injury lawyers to proceed with pursuing the remaining money of coverage going forward. If we can assist your firm during probate court approval for your injured victim, please let us know.