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Court Orders Administrator To Elect Portability

March 22, 2017

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When the IRS enacted the portability election provisions in 2011, which allowed estates of married taxpayers to pass along the unused part of their estate and gift tax exclusion amount to their surviving spouse, it remarked that it “expect[ed] that most estates of people who are married will want to make the portability election. . . .”  But, to elect portability, an estate tax return must be filed in order to pass along the exclusion.  So, what happens when an executor refuses to elect portability?  Take them to court, of course.

In In the Matter of the Estate of Vose, the decedent and her spouse entered into an antenuptial agreement prior to their marriage, which provided:

6.1 Waiver: Except as otherwise specifically provided in this Agreement, [Spouse] and [Decedent] mutually waive, discharge, and release each other to the fullest extent lawfully

Forgiveness May Be Available For An Untimely Caveat

January 20, 2017

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It’s a new year and with it comes many resolutions. Each year, a popular resolution is to be more forgiving or to forgive someone who wronged you.  Apparently, trying to get a head start on its resolutions, on December 30, the Georgia Court of Appeals entered its opinion in In re: Estate of James Lynn Hill.  What does this have to do with forgiveness?  Remember that time we said that “in Georgia, the time to file a caveat may be short and unforgiving?”  Well, some forgiveness may be available.

An executrix filed a petition to probate a will.  Notice was sent to an heir informing him of the deadline to object.  The heir filed a caveat, but did so over a month late.  Under

Expert Testimony Necessary On Standard Of Care? Maybe Sometimes, But Not Always.

January 4, 2017

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Whether a plaintiff needs an expert witness in a breach of fiduciary duty case to testify on the standard of care is a frequently debated topic.  In Heisinger v. Cleary, the Supreme Court of Connecticut weighed in on one side of that debate when it determined that no expert testimony was appropriate on the standard of care applicable to executors who seek professional advice to value the assets of an estate for preparation of estate tax returns.

A plaintiff brought claims that the executors of an estate breached their fiduciary duties to him, the decedent’s sole heir and the only beneficiary of a trust established under the decedent’s will, by, among other things, failing to supervise the work of others.  More specifically, the plaintiff claimed that the appraisers hired by the

The Georgia Superior Court/Probate Court Dance

November 9, 2016

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No procedural or jurisdictional issues in Georgia fiduciary litigation can cause as much headache as the sometimes exclusive and sometimes concurrent jurisdiction of the superior and probate courts.  The Georgia Court of Appeals’ recent decisions in Rentz v. Rentz and Rentz Family Farms v. Rentz put a spotlight on these procedural and jurisdictional tensions.  The cases involved the distribution of real property held by an estate, a probate court’s order to liquidate that real property despite a current lease on certain parcels, and an attempt to have a superior court weigh in on the propriety of the probate court’s actions while the probate court proceedings were ongoing.

The appellate court’s description of the interaction between the probate and superior court as “complicated” may be an understatement.  Cutting through the “complicated interaction” was

Giving Away What You Don’t Know You Have

September 14, 2016

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Under Georgia law, the standard for testamentary capacity requires that a testator remember generally what property is subject to the will’s disposition.  You don’t have to know every dollar, where it is, or all your personal property.  You just have to have some idea of what you have in order to give it away.  While we’d like to quibble over how specific your knowledge must be about the extent of your property to demonstrate testamentary capacity, in Webb v. Reeves, the Georgia Supreme Court just told us that you don’t actually need to know the extent of your property as long as someone apprises you of it.

In this estate dispute’s second appearance here, a caveat was filed to the petition to probate the will of Joseph Thomas Schmidt on, among

Evidence Of Undue Influence Came Too Late

September 24, 2015

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Evidence Of Undue Influence Came Too Late

September 24, 2015

Authored by: Luke Lantta

Of the many reasons estate litigation can get so expansive (and expensive), family relationships often take a central role.  In addition to the depth and complexity of relationships among family members, the sheer number of relationships to investigate and pin down when a claim is raised can make estate litigation particularly toilsome.  For an undue influence case, for example, you may want to track down and interview every person who interacted with the testator within a certain period of time before and after the will was executed.  At least an undue influence case puts a premium on evidence close to the execution of the will.  For some disputes, the relevant time period may stretch decades.

In Debter v. Stephens, the Georgia Supreme Court highlighted the danger of not running all the evidence to ground early on.

Personal Representative Should Have Been Removed For Conflict Of Interest

September 16, 2015

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It’s not often that a personal representative asks a court to remove her.  It’s probably less often that a trial court refuses to remove a personal representative who asks to be removed.  But, that was the situation before the Court of Appeals of Wisconsin in Rapp v. Weller.  The appellate court, however, ultimately decided that the personal representative should be removed for an unmanageable conflict of interest.  What was the conflict of interest?

The personal representative had conflicts stemming from her fiduciary duties to the estate she represented and her personal interest as an heir of that same estate.  Laura Rapp had been appointed as personal representative for her brother Laurence Berg’s estate.  She participated in a mediation and signed a settlement agreement on the estate’s behalf.

How Much Notice Is Required To Remove A Georgia Executor?

September 2, 2015

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Just how much notice is required before removing an executor in Georgia?  Maybe not all that much.

In Myers v. Myers, the beneficiary of several testamentary trusts filed a petition in probate court seeking, among other things, removal of the executor of the estate for numerous alleged breaches of fiduciary duty and a conflict of interest.  The beneficiary later withdrew the request that the executor be removed out of concern over an in terrorem clause and limited the petition to a request for an accounting.  In the amended petition, however, the beneficiary still repeated all of the original petition’s breach of fiduciary duty and conflict of interest allegations – he just didn’t specifically seek removal based on

Virtual Adoption Requires Intestacy

July 15, 2015

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For the second time this year, the Georgia Supreme Court has addressed the equitable doctrine of virtual adoption.  Here’s how we previously described the doctrine:

In a virtual adoption, the ‘adopting parent’ orally agrees to adopt the child of another as his or her own without actually legally adopting the child and all parties act on the oral agreement to adopt.   Virtual adoption is not legal or statutory adoption.  It is an equitable remedy that is applied only upon the death of the ‘adopting parent’ to avoid an unfair result to the ‘adopted child’ by the application of intestacy laws.

In Johnson v. Rogers, the Georgia Supreme Court reaffirmed that this equitable doctrine can only be applied where the ‘adoptive parent’ dies

Do You Need Testimony From Subscribing Witnesses To Admit A Will To Probate In Georgia?

July 8, 2015

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The question of when subscribing witnesses are necessary to admit a will to probate can sometimes be a tricky one.  So tricky that it may even trip up a probate court.  The issues mainly seem to arise when dealing with shifting burdens when a will is challenged.

In a recent Georgia case, Reeves v. Webb (consolidated with Groenenboom v. Webb), there was a petition to probate the decedent’s will in solemn form, and an objection and caveat were filed on the grounds that there was a breach of fiduciary duty to the decedent, fraud, undue influence, and lack of testamentary capacity.  The probate court dismissed the petition by finding that the propounder did not make out a prima

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