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Georgia Superior Court Could Not Sanction Probate Court Conduct

February 28, 2018

Authors

Luke Lantta

Georgia Superior Court Could Not Sanction Probate Court Conduct

February 28, 2018

by: Luke Lantta

Probate court practice can be quirky, fraught with procedural peculiarities and appellate traps for those who do not regularly practice there.  Appeals from a Georgia county probate court to that county’s superior court – an appellate process that does not apply to every probate court in Georgia but only to those in certain counties – is one arena in which these quirks frequently arise.  Often, the issues relate to jurisdiction between the two courts.  In McNair v. McNair, the Georgia Court of Appeals addressed a superior court’s authority to impose sanctions for conduct that occurred in probate court proceedings in the same case but prior to the appeal to superior court.

The short answer?  It can’t.

Estate disputes are among the most hotly contested disputes for myriad reasons, not the least of which is they often involve family. 

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When Military Wills Do Not Contemplate Future-Born Children

February 7, 2018

Authors

Luke Lantta

When Military Wills Do Not Contemplate Future-Born Children

February 7, 2018

by: Luke Lantta

Estate planning probably isn’t high on the priority list for many 20-year-olds, even if they are 20-year-olds serving in uniform.  While the Armed Forces may make it easy for those serving our country to get a will, these testators may need to be reminded to update those wills they executed as certain life events occur, like getting married or having children.  So it was in Hobbs v. Winfield, where the Georgia Supreme Court determined that the military will executed by a 20-year-old did not contemplate the birth of future children and, therefore, the birth of those children revoked his will.

At 20-years-old, while serving in the military, the testator executed a will.  The will named the testator’s mother as his sole beneficiary and personal representative, and, if his mother predeceased him, his ‘grandmother’ was the successor beneficiary and personal representative. 

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If It’s Not In The Will, Does It Matter What The Testator Wants?

August 17, 2017

Authors

Luke Lantta

If It’s Not In The Will, Does It Matter What The Testator Wants?

August 17, 2017

by: Luke Lantta

If you want someone to get your money or property when you die, why don’t you just say so?  The case reporters are thick with stories of testators who left money or property to one person with the supposed ‘understanding’ or ‘instruction’ that the person who got the money would use it for the care of another.  Add Rabun v. Rabun to that list.

In this trust and estate dispute, the decedent transferred assets during his life and through his will to his grandson (who was also his executor and his adopted son).  The decedent’s widow claimed that the decedent intended for some of these assets to be used by the executor for her support, so she sought imposition of a constructive trust on those assets.

In support of her claim, the widow pointed to

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Guardians Should Guard Against Claims Of Undue Influence

June 7, 2017

Authors

Luke Lantta

Guardians Should Guard Against Claims Of Undue Influence

June 7, 2017

by: Luke Lantta

guardian‘s job requires that the guardian be involved in the affairs of the ward.  In turn, the ward likely is going to be dependent on and trust the guardian.  Chances are – because Georgia sets an order of preference for persons eligible to become a guardian for a ward – the guardian also may be a close family member.  Since people often like to put their family members into their wills as beneficiaries, a guardian may run into a situation where the ward names him or her as a beneficiary of the ward’s estate.  While that seems all well and natural, because of the fiduciary relationship between guardian and ward, that will may get a close look by a court.

So what is a guardian to do?

Distance herself from the estate planning process.

While there is no

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Waiver Of Year’s Support Through Post-Nuptial Agreement

May 3, 2017

Authors

Luke Lantta

Waiver Of Year’s Support Through Post-Nuptial Agreement

May 3, 2017

by: Luke Lantta

Divorce should put an early end to the marriage vow of “’til death does us part.” But, when it comes to estate disputes, neither divorce nor death can part the path to the courthouse.  In In re: Estate of Boyd, the husband and wife may have suspected their marriage could end: after 15 years of marriage, they separated, reconciled, and then entered into a post-nuptial agreement.  The agreement provided how assets would be distributed if the parties were married at the time of either’s death and provided for distribution of assets if the parties separated or filed for divorce prior to death.  The latter provision is relevant.

The husband filed for divorce and died hours later.  The wife filed a petition for year’s support in the probate

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Agents Under Power of Attorney – Where Will You Get Hauled Into Court?

April 19, 2017

Authors

Luke Lantta

Agents Under Power of Attorney – Where Will You Get Hauled Into Court?

April 19, 2017

by: Luke Lantta

Powers of attorney can be matters of convenience or matters of necessity – the principal either doesn’t want to do something or the principal can’t do something.  For the agents under a power of attorney, allowing yourself to be named as an agent may be nothing more than a favor to friend or an expectation as a son or daughter.  When agreeing to be an agent, it may be worth a pause to consider the geographic scope of that responsibility.  Friends and kids move away, but – like a daughter acting as an agent under her father’s power of attorney in Sullivan v. Bunnell – they may find themselves getting hauled into court across the country because they served as an agent under a power of attorney.

Here, in the midst of his divorce, the father moved from Read More

Beware The Constructive Trust When Relying On ‘Informal’ Estate Distributions

April 6, 2017

Authors

Luke Lantta

Beware The Constructive Trust When Relying On ‘Informal’ Estate Distributions

April 6, 2017

by: Luke Lantta

We like when families can work out their estate disputes outside of the courtroom.  Georgia, for one, embraces the “family settlement doctrine,” where heirs at law can agree to distribute or divide property devised under a will, in lieu of that manner provided by the will.  So, too, families often want to ‘avoid probate’ and ‘informally’ distribute the estate.  As the Georgia Court of Appeals reminded us in Maxey v. Sapp, that’s all well and good until someone doesn’t get what they want or what they thought they were getting.

The Sapps executed a joint will providing that when one of them died the survivor would inherit the other’s property. After the survivor’s death, the remainder of the estate was to be devised and bequeathed to

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Forgiveness May Be Available For An Untimely Caveat

January 20, 2017

Authors

Luke Lantta

Forgiveness May Be Available For An Untimely Caveat

January 20, 2017

by: Luke Lantta

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 Read More

The Georgia Superior Court/Probate Court Dance

November 9, 2016

Authors

Luke Lantta

The Georgia Superior Court/Probate Court Dance

November 9, 2016

by: Luke Lantta

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

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Giving Away What You Don’t Know You Have

September 14, 2016

Authors

Luke Lantta

Giving Away What You Don’t Know You Have

September 14, 2016

by: Luke Lantta

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

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