Mon - Fri 9:00am-5:00pm
Get In Touch

Probate Court General Questions

Q- Received a favorable Order denying a motion in probate court.  I expect an appeal.  Is it 30 days to the Superior Court or straight to the Court of Appeals? The matter is “over” in probate court as a result of said Order.

A-Or the Supreme Court as an appeal route.  Depends on the County where the probate is pending.  30 days either way.

Q- 12 out of 13 heirs want to sell several parcels of real property in an estate.  1 heir is being difficult and refusing to agree to sell. What can the executor do to get the sales accomplished?

A-File a petition for the sale of the property with the probate court and let the judge make the decision.  Assuming the price to be fair, the court will tell the holdout to buy the property himself or the court will approve the sale.

Q- O.C.G.A. Section 53-6-60(b) says that the administrator is entitled to a “commission on all sums of money received by the personal representative”.  Would this commission be on the total amount of a settlement or on the net- money less attorney’s fees and expenses?

A-Gwinnett Probate has interpreted this statute to be exclusive of fees, or said differently, the commission is only on the net proceeds.

Q- Client in August 2012 MVA. Settled this soft tissue case for sub 20k on January 15 2013.
Client dies for totally unrelated reasons Feb 1, 2013 but uninsured w resulting $100k hospital bill. Client NEVER signed release pre MVA but case settled for sure. Client not married and no children. Now mother getting calls from hospital re bills. Question. Concerned if I establish estate to execute release and distribute net Settlement funds the hospital will eat up any recovery from settlement via estate. Is there any way to avoid probate and legally permit mother or other “rep” to sign release? Otherwise doesn’t seem to make sense to establish estate etc.

A-I suspect that the defense lawyer is going to drive this issue.  Additionally, your fees are tied up with someone to sign off for you.  I do not think the mother can qualify in any capacity other than administrator.  Further, someone paid for the decedent’s funeral and that person deserves to be repaid.  I presume Mom paid for the funeral.  Therefore, open the administration, get mom to sign off on the release, get mom to reimburse herself for the expenses of setting up administration, reimburse herself for the funeral,  pay herself the commissions she earns handling the estate and pay the balance (probably very little) to the creditors.

Q- I have a client who wants to resign her position as executor of estate for health reasons and the burdens of the job. My question is, can she file the petition to discharge at the same time as the petition to resign or does the petition to resign have to be granted first and then she files the discharge? I would appreciate any insight.

A-If she simply wants to resign and there is still work to be performed in the estate, she will simply submit a resignation to the probate court who will basically take it from there.  The successor executor should be notified so that person can file to be appointed.  When the new person is appointed, she will submit to the next executor her records of the estate.  If all the work is already concluded, she will file a Petition for Discharge and that will close the estate.

Q- I have to file a motion for contempt in probate court.  Does anyone have a Go By?

A- Just use your normal superior court filing and change to cite the probate court rules.

Q- Buy-sell agreement sets forth conditions of purchase of stock both before & after the death of the company’s principal. Agreement also states that it is binding on the heirs & PR of the principal’s estate. If none of the heirs (which group presumably includes the eventual PR) is actually a signatory to the agreement, is it binding on the heirs after the principal’s death?

A- I do not know how you can bind those not in privity, but the personal representative is probably bound.

Q- I have a probate client who is filing for guardianship and conservatorship of her mother (who she says is not mentally capable of making competent decisions on her own behalf)  the judge has informed me that he is assigning a Guardian Ad Litem on the case and appointing an attorney for Proposed Ward and my client will have to pay the cost of these two attorneys.  My client has an issue with this and is asking what Rule or code Section permits the court to pass this expense to the Petitioner.  I have in other counties had my client pay the court fee up front and never challenged it because the information and fees were clear online. This Probate Court does not have the same computer advancements and my client is refusing to pay the court fees. I have looked and the only Code section I found was OCGA §29-9-15 which states:

“Any legal counsel or guardian ad litem who is appointed by the court in a guardianship or conservatorship proceeding shall be awarded reasonable fees commensurate with the tasks performed and time devoted to the proceedings, including any appeals.”

However, this does not address what gives the Judge or Court authority to pass this expense to the Petitioner.  If anyone knows of the specific Probate Court Rule or Code Section I would greatly appreciate your assistance.  To be honest I just never had any one question the court fees before.

A- Why would you think that being awarded reasonable fees means someone other than the petitioner will pay them?  The law requires the appointments.  Someone has to pay them.

Q- I have a probate case wherein the Defendant filed a de novo appeal to the Superior Court.  The Defendant (executor) took a substantial amount of money from the heirs and I wanted to know if there was a motion, I could file requesting the Defendant to post a bond?

A- I assume executor has been removed, or is that what the appeal is all about?  Probate judge is not divested of authority to continue to oversee estate, and therefore, he can order bond for thieving executor.

Q- Does the CPA apply in probate court?

A- Not stupid and yes it does.  More so in some courts than others (by judicial edict!!), but it is supposed to apply to all of them.

Q- I have wrongful death case where the funeral home apparently made an error on the death certificate — writing someone’s name as being the father when that person was not the father.    It happened in DeKalb County, and I’d like to correct the death certificate.  Anyone been down this road before?

A.- Sometimes you can get the submitting agency, usually the funeral home to request an amendment.  Sometimes you have to get a superior court judge to order it.

Q- I do not ordinarily practice before probate courts in Georgia.

Do these courts provide court reporters? Or, must we arrive at hearing bringing with us our own court reporter? Are the proceeding otherwise recorded?

A.-Generally, you need your own reporter.  Cobb County has a court reporter full time, but I believe that to be the only county with one. Guardianship proceedings are recording via some kind of tape recorder, depending on which county you are in.

Q.- why not just probate the Will in Pennsylvania and get your Letters Testamentary from

the court there …  I can’t think of anything the executor could not do in GA just because

his\her letters are from another state…

A.- You can only probate where the decedent resided at time of death generally speaking.  As with all laws, there are a couple of weird exceptions.

Q- Does anyone have a petition to set up ancillary proceedings here in GA for an estate case?  I had to set up an estate in Maine, and now I need to initiate proceedings here in GA for related estate administration matters.  Thanks in advance.

A- You use the regular petition to probate form and modify it to fit