Category

Uncategorized

Why You Should Consider Filing for A Year’s Support

By | Probate and Trusts, Uncategorized | No Comments

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

A Jury Victory for Our Client

By | Uncategorized | No Comments

We are pleased to announce a jury victory for one of our deserving clients. In this matter, our client was involved in a rear-end collision. While he was stopped at a red light, the person behind him failed to stop in time and ran into the back of his car. Our client has suffered from severe back pains after the collision. After four months of conservative treatment, he was released to return to his normal duties. Prior to retaining our firm, our client had been offered $3,000 to resolve this matter. After we were retained, we took the matter to trial and recovered $12,000 for our client. This was another opportunity for our firm to prove to insurance companies they cannot simply trample on the rights of those injured, due to the negligence of the insured. Please call us if you were involved in a collision and the insurance company is not treating you right.

IS THE STATE HOLDING PROPERTY THAT BELONGS TO YOU?

By | Uncategorized | No Comments

Have you checked to see if your state has property belonging to you? If not, do so at least annually. The State of Georgia, and all states, have an unclaimed property department. Unclaimed property is given to the state for holding when a company or person has property that belongs to another, but cannot locate that person to give her the property.

This often occurs when you own stock in a company, or have a deposit at a bank, and merely forget about it. You move on in life, move to a new address, and the person holding your property can no longer find you. That company is under no obligation to spend its funds searching for you. When this occurs, companies can give your property to the state with the identifying information it has about you.

The State of Georgia holds unclaimed property for 5 years. If, after 5 years, you have not claimed the property, it then belongs to the state (escheats to the state). To find out whether you have any property being held by Georgia or any state where you once lived, go to https://www.unclaimed.org/ . This website is The National Association of Unclaimed Property Administration. Once on the website, you can choose from the 50 states to contact that state directly. You then search using your name in each state where you maintained an address in the past five years. Because many people share your name, you will then be requested to enter additional identifying information so the system can determine whether this property belongs to you or another person with your same name. Once you have confirmed with the state you are the owner of this property, the state will turn the property over to you.

Everyone should check the unclaimed property website annually for any state in which you have lived within the past five years.

Another Victory in Georgia Probate Court

By | Uncategorized | No Comments

We are pleased to announce another successful outcome in a Georgia Probate Court for a very deserving client. Here, we believed our client was included in his grandmother’s Will after his father had passed away. Our client’s aunts and uncles believed that the grandmother deliberately omitted him from her Will. Despite our vigorous efforts to convince the opposing counsel that the Will included our client, we had to file numerous pleadings with the Probate Court asking that the Court interpret the Will. After months of legal wrangling, we secured a complete victory for our client. The Probate Court found that the grandmother included our client in her Will, and that he is entitled to his father’s share of the estate.

Once again, we have been able to defend the rights of one who otherwise would have been taken advantage of by his relatives. If you believe that you are being mistreated or taken advantage of in an estate dispute, please contact the lawyers at Robert W. Hughes & Associates and we will be happy to review your situation and give you an assessment. You may be entitled to more than you think.

 

Vote NO to the Constitutional Amendment No. 1 this year

By | Uncategorized | No Comments

If you are for keeping your local school board in charge of local schools, vote no to the Constitutional Amendment No. 1 this year.

The Georgia Legislature determined that many of our schools throughout the state are failing. Shocking that they have awakened to this decade’s old problem! The Legislature’s solution for those failing schools is to terminate county authority for the schools and let the State run the schools.  This is a sad excuse not to approve charter schools which have proven to succeed where the previous school failed.  This is akin to the federal government deciding it knows better than our state on how to handle education.  Since the federal government became involved in our local education, schools have become more like daycare centers than the true learning centers they should be.  The local administrators have been handcuffed by the federal government in how to teach and how to discipline.  The State of Georgia is attempting to do the same here.  Local citizens recognize if one of their schools is failing and can take action by voting in new board members, demanding the firing of school superintendents, etc.

Whenever the State takes over a local school, the local citizens are relinquishing control to the State of Georgia over how the local school is run, what it teaches and how it disciplines its students. VOTE NO to Constitutional Amendment 1 on this year’s ballot.

Vote NO to Amendment THREE This November

By | Case News, Civil Litigation, Probate and Trusts, Uncategorized | No Comments

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.

Has Someone Nominated You to Be the Executor of Their Estate?

By | Uncategorized | No Comments

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:

  1. 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.
  2. 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.
  3. 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.

 

 

 

 

 

Social Security Benefits

By | Uncategorized | No Comments

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.