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How Much Notice Is Required To Remove A Georgia Executor?

September 2, 2015

Authors

Luke Lantta

How Much Notice Is Required To Remove A Georgia Executor?

September 2, 2015

by: Luke Lantta

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

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Time Limit For An Estate Accounting

June 3, 2015

Authors

Luke Lantta

Time Limit For An Estate Accounting

June 3, 2015

by: Luke Lantta

Estates can be left open for a long time.  Like decades long.  And during that time, an executor is going to continue to owe certain fiduciary duties to the beneficiaries of the estate, such as the duty to provide an accounting to the beneficiaries.  In In re: Estate of John Malcolm Wade, the Georgia Court of Appeals examined the time limit in which a beneficiary may bring an action for an accounting of an estate.

In this case, the estate had been open since 1987 and was still open in 2012 when one of the beneficiaries (Mary, who was also a co-executor with her four siblings) petitioned the probate court to obtain an accounting of her co-executors’ dealings on behalf of the estate.  The siblings claimed that Mary’s action was time-barred under

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Restoration Of A Ward’s Rights

April 8, 2015

Authors

Luke Lantta

Restoration Of A Ward’s Rights

April 8, 2015

by: Luke Lantta

A guardianship or conservatorship in Georgia is not necessarily permanent.  If a ward regains sufficient capacity to make or to communicate significant responsible decisions concerning his health or safety, a guardianship may be terminated.  Similarly, if a ward regains sufficient capacity to make or to communicate significant responsible decisions concerning her finances, then a conservatorship may be terminated.  Sometimes, the evidence is clear one way or the other but, at other times, the evidence conflicts.

In In re Loftus a/k/a Serewicz, the Georgia Court of Appeals instructed that, when the evidence conflicts on whether a ward has regained capacity, the probate court must hold a hearing on a restoration petition.  In this case, a licensed psychologist submitted an affidavit that the ward had regained sufficient capacity,

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Probate Court Could Not Dismiss Guardianship Petition Absent Evaluation Of Proposed Ward

January 21, 2015

Authors

Luke Lantta

Probate Court Could Not Dismiss Guardianship Petition Absent Evaluation Of Proposed Ward

January 21, 2015

by: Luke Lantta

At first blush, the Georgia Court of Appeals’ recent guardianship opinion in In re: Estate of Radric D. Davis seems intuitive: if a probate court finds probable cause to warrant the filing of a guardianship petition, then the probate court cannot later dismiss that petition without an evaluation of the proposed ward.  But, that this issue was before the whole appellate court instead of an appellate panel is the first indication that perhaps the question is more complex than it first seems.

A petition was filed for appointment of a guardian and/or conservator for Radric Davis.  The probate court reviewed the petition and determined that there was sufficient evidence to believe that the proposed ward was in need of a guardian and/or conservator.  A licensed clinical social worker was ordered to evaluate

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Administrative Legitimation Did Not Make Child An Heir At Law

September 9, 2014

Authors

Luke Lantta

Administrative Legitimation Did Not Make Child An Heir At Law

September 9, 2014

by: Luke Lantta

Georgia‘s convoluted and contradictory “legitimation” process through which a man claims paternity of a child born out of wedlock can have significant implications on inheritance.  Georgia’s General Assembly, however, has tinkered with the process to the point that it can put well-meaning people at risk when it comes to disposition of property.  The General Assembly has passed legitimation laws without amending related Code sections creating a panoply of statutory conflict and futility.  In In re Estate of James Andrews Hawkins, James Hawkins tried to administratively legitimate his girlfriend’s child but this administrative legitimation did not make the child Hawkins’ heir at law.  Where did Hawkins go wrong?

Hawkins was the boyfriend of Yuvette Ridley.  Ridley became pregnant by another man and gave birth to a son, Makaleb.  Although Hawkins knew he was not Makaleb’s father, Hawkins continued in a relationship with Ridley, bought

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Reducing A Beneficiary’s Share Of An Estate Is Going To Require Some Backup

August 5, 2014

Authors

Luke Lantta

Reducing A Beneficiary’s Share Of An Estate Is Going To Require Some Backup

August 5, 2014

by: Luke Lantta

It can be frustrating to an executor and other beneficiaries of an estate when one of the beneficiaries causes unnecessary cost to the estate.  Wills and some state statutes sometimes provide a way to reduce that beneficiary’s testamentary share of the estate.  These provisions are often couched in terms of the executor having “discretion” to reduce a beneficiary’s share.  But, as the Georgia Court of Appeals explained in In re: Estate of Hazel Williams Helms, discretion doesn’t mean that an executor can arbitrarily reduce a difficult beneficiary’s testamentary share of an estate.  As we have previously seen in the context of a court applying the doctrine of set off, if someone is going to get less than that to which they are entitled under an estate, there needs to be specific evidence

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Georgia Probate Court Could Trump Parties’ Selection Of Guardian

July 29, 2014

Authors

Luke Lantta

Georgia Probate Court Could Trump Parties’ Selection Of Guardian

July 29, 2014

by: Luke Lantta

Guardianship litigation can be painful and divisive, so you might think that a probate court would rejoice when the parties reach a settlement.  But, as the Georgia Court of Appeals explained in In re: Estate of James Irwin Kaufmann (link via FindLaw), the parties’ agreement cannot force a probate court to abdicate its statutory duties when it comes to appointment of a guardian.

A probate court made an emergency appointment of James Kaufmann’s adult son, Rocco, as guardian and conservator of Kaufmann.  Later, the probate court appointed Rocco as Kaufmann’s guardian, but appointed Jerry L. Landers, Jr. as Kaufmann’s conservator.  Kaufmann then filed a petition for restoration of an individual formerly found in need of a guardian and/or conservator in which Kaufmann requested a restoration of his rights or, in the alternative, appointment of a new guardian and new

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Damages Against Executor/Beneficiary Who Breaches Fiduciary Duty

April 9, 2014

Authors

Luke Lantta

Damages Against Executor/Beneficiary Who Breaches Fiduciary Duty

April 9, 2014

by: Luke Lantta

When fiduciary litigation involves individuals, there is sometimes the risk that a successful plaintiff will get a judgment against an individual fiduciary but will never be able to collect the monetary damages award from that individual.  When a wrongful executor is also a beneficiary of an estate, making a successful beneficiary/plaintiff whole can get a little easier through the doctrine of set off.

In Georgia, under this doctrine, a legatee or owner of a distributive share in an estate may set off such share against a judgment against him unless special reason exists requiring collection of the judgment.  While Georgia probate courts have broad authority to set off a money judgment against a personal representative’s share of the estate, certain findings and calculations are necessary.  Thus, a probate court cannot just broadly prohibit an executor who breached his or

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Petition To Probate Copy Of Testator’s Will Denied

January 30, 2014

Authors

Luke Lantta

Petition To Probate Copy Of Testator’s Will Denied

January 30, 2014

by: Luke Lantta

Just a few months ago, we saw the Georgia Supreme Court decide that a copy of a will was good enough to admit to probate.  At that time, we said

Under Georgia law, if the original of a will cannot be found for probate, there is a presumption that the testator intended to revoke the will.  But this presumption can be overcome if a copy is established by a preponderance of the evidence to be a true copy of the original and if it is established by a preponderance of the evidence that the testator did not intend to revoke the will.

Now, in Britt v. Sands, we see that same Supreme Court decide that a copy was not good enough.  What was the difference?

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Georgia Probate Court Lacked Authority To Extend Time To Appeal

November 12, 2013

Authors

Luke Lantta

Georgia Probate Court Lacked Authority To Extend Time To Appeal

November 12, 2013

by: Luke Lantta

Probate court litigation can be very different from other types of litigation, especially when it comes to procedural matters.  Within a single probate case, there can be multiple evidentiary hearings, which can be like mini-trials.  Also, the probate court may enter numerous orders along the way, the rules of appealing which can be different from typical appeals.  For example, in Georgia, “[a]n appeal shall lie to the superior court from any decision made by the probate court, except an order appointing a temporary administrator.”  The time limit for such an appeal is “within 30 days of the date the judgment, order, or decision complained of was entered.”  How hard is that 30 day time limit?  In Duncan v. Moreland, the Georgia Court of Appeals let us know.

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