Probate Administration


Robert T. Prior

SEE ALSO: Probate Litigation in Athens, Ga .

Probate is the legal process by which a person’s debts are paid and assets owned by the decedent are distributed upon death. When a deceased person’s Last Will and Testament is offered for probate, there are many requirements placed upon the probate process by Georgia law. Creditors and heirs are all accorded various rights, privileges and limitations that must be strictly followed. The Will itself is available for review, and not everyone involved may be satisfied with the results when the provisions of the Will are read in conjunction with the legal mandates

We understand that while clients are best served by first attempting to negotiate an honest, fair and prompt resolution to a dispute, it often becomes necessary for an estate attorney to litigate in order to preserve and protect a family member’s personal rights and assets or a client’s inheritance.

The Types of Probate Litigation

There are several grounds for contesting an individual’s Will, including:

  1. Mistake in Execution – if any of the provisions in the Georgia statutes are not met then the documents are not a valid under Georgia law.

  2. Undue Influence – an undue influence claim challenges whether the person making the Will did so freely and without being coerced by a person who was in a position of trust and control.

  3. Lack of Testamentary Capacity – a lack of capacity claim is asserted based upon the belief that at the time the Will was executed the person making the Will did not have the requisite mental ability to understand a) the amount and nature of his property; b) the family members and loved ones who would ordinaryly receive such property; and c) how the Will disposes of such property.

In addition to Will contests, probate litigation can involve:

  1. Will Construction – sometimes Wills are vague; beneficiaries have died or disappeared; or the document does not properly dispose of the entire estate. In these instances, the assistance of the court is sought to determine how a decedent’s estate should be distributed.

  2. Determination of Heirs – sometimes a decedent leaves no will and had little contact with his family. The heirs need to be determined by the court. Sometimes, the decedent has formerly unacknowledged children who wish to prove paternity/maternity and make a claim in the estate.

  3. Breach of Fiduciary Duty – a person appointed by the court to administer a decedent’s estate has duties and responsibilities with which they are charged. Failure to properly administer an estate, either by overt act or by omission, can be actionable. Sometimes the remedy sought is removal of the fiduciary. When funds have been wasted or mismanaged or excessive fees have been taken, the remedy can be a surcharge action.

  4. Removal of Fiduciary – a fiduciary may be removed by the court for cause.

  5. Accounting – beneficiaries have the right to an accounting. If one has not been provided, then a beneficiary may seek the court’s assistance to compel the fiduciary to account for the estate assets. If an accounting has been provided and is objectionable for any reason, then the beneficiary may object to the accounting.

SEE ALSO: Probate Litigation in Athens, Ga .

If you are faced with questions about what to do after the death of a loved one, we can help. Our law firm will be able to go over the proper procedures with you and discuss your options. To set up a consultation with Mr. Daniel about probate issues, call 706-543-0002.

Fees:Mr. Daniel recognizes that many individuals in a probate dispute cannot handle the expense of litigation. Mr. Daniel works with each client to establish a flexible fee approach which will allow them to protect their rights.

Attorney Referrals:Estate, guardianship, and trust litigation are developing areas of the law The large elderly population has created a hotbed for abuse and subsequent litigation. Because probate, guardianship, and trust work generally do not involve litigation, most practitioners in those areas are reluctant – and wisely so — to litigate an issue themselves. Litigation is full of pitfalls that make it a hazard for attorneys who do not specialize. Our most frequent attorney referrals come from estate planning and probate practitioners who correctly identify an issue while planning or administering an estate and realize that litigation may become necessary. If you are an attorney and have identified an issue and would like to discuss it further before recommending litigation to your client, please call our firm to discuss the matter. We co-counsel cases throughout the State of Georgia.

Contact Attorney Michael Daniel About Probate Litigation

MICHAEL C. DANIEL received his JD degree from the University of Georgia Law School in December of 1983. He was admitted to the Georgia Bar in 1984 and is a member of the Business Law, Health Law Labor & Employment Law and School & College Law Labor Sections of the State Bar of Georgia.

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