I will begin syndicating the responses I give to certain estate and probate questions posted on the advice website Avvo.
We begin with a question regarding estate planning. I'll place the question here and then my answer after the "read more" break.
What is the process we need take on adding me to his deed, or doing a trust?
My dad has property in Ga., and it only has his name on it. At this time he has no will. He's 73 yrs old. We are wanting to put my name on the deed and he is wanting to do a trust will. If he does that type of will does he need to put my name on the deed? My mom is deceased. And there are three other kids besides me. I'm the one that writes out bills and does his banking for him. Basically looks after my dad.
The Georgia Supreme Court recently handed down the case of Smith v. Ashford (full text below the break), in which it dealt with a testator's use of a "power of appointment."
What is a power of appointment?
In estate-planning parlance, a power of appointment is used when a benefit is given, together with a right (a "power," as it were) to decide who gets that benefit when the initial beneficiary dies. The possessor of that right has a "power of appointment."
In a common example, parents may leave their wealth in trust to a child, together with an unlimited power of appointment. The child draws benefits pursuant the trust during his lifetime and has the power to decide, in his own will, who will inherit his share of the trust when he dies.
Drafters of trusts governing large estates like to use powers of appointment when they trust the beneficiary (often their child) to decide who most deserves to receive the benefit of the trust years or decades into the future.
In Smith v. Ashford the Supreme Court interpreted a will in which the holder of a power of appointment sought to give the power itself to his wife. Without holding on the question of whether you can inherit a power of appointment itself (you can), the Court said that it didn't matter - the original power of appointment stated that it had to be exercised before its holder died. Since it was not so exercised, the power lapsed.
The Georgia Supreme Court handed down the probate case of Myers, Executor v. Myers, today.
In some ways, the case is an unremarkable example of an executor using an estate as a cash cow for his personal expenditures and, among other things, granting himself
$53,000 in executor's fees while so doing.
The case books are littered with such fact patterns. Perhaps the most important take-away from Myers is the holding that an executor may not continue to run a single-member-LLC business in the estate, when that LLC's operating agreement calls for its dissolution upon the death of a member.
This is particularly useful information for the estate practitioner, because nearly all form operating agreement forms call for exactly this. Yet, it is common enough for an executor to continue to run and fund an estate business for months after a decedent's death. According to the Supreme Court today, so doing may be grounds for the executor's removal.
Full text of the opinion follows after the "read more" break.
The superior court judge of Athens-Clarke County apparently totally botched a trust litigation matter, according to the Georgia Court of Appeals.
The lower court had determined that a trust's maker (the "settlor") had improperly amended the trust, when she attempted to name her son its new trustee only two months before she died. (And, in so doing, to "un-name" her other two children).
Among other things, the "amendment" to the trust was written out by a non-lawyer; improperly used the word "executor" instead of "new trustee;" was captioned as a "general durable power of attorney;" and stated that the original trust was, in fact, revoked. Nevertheless, the Court of Appeals reversed the trial court's decision, declaring that the amendment was correct.
What was going on here? It's possible that the trial court saw that one of a group of children had taken the settlor, his mother, into his confidence only weeks before she died and had exerted undue influence over her, including having her write the extremely poorly worded trust amendment, allegedly naming him as the new trustee.
The problem may have been that the trial court didn't find that undue influence exists. (This issue is, after all, notoriously hard to prove). Instead, it relied only on the poorly written "general power of attorney," finding that the alleged trust amendments in it simply weren't done properly.
That led to the reversal. If an amendment isn't the product of fraud or duress, the courts will look not to whether it's worded perfectly but to the intent of the drafter. Clearly, the Court of Appeals said, the intent was that the trustee of the trust be changed.
A full text of the opinion is below the "read more" break.
Responding to the needs of its consumers, Facebook now allows users to name a "legacy" contact who may use the deceased's page for certain purposes. Notably, this FB "executor" may not continue to make new posts. He can, however,
The new user may not, however, access private messages sent to the deceased.
This law firm has encouraged its clients to name a "digital executor" and to make online passwords and account information an essential part of their estate plan.
In Georgia, most estate attorneys recommend use of a will rather than a living trust. Probate in this state is a simple affair, if the will is properly drafted, and living trusts are expensive to manage and administer during life.
The situation may differ when the testator knows she has 79 heirs.
In a recent case, we were called upon to probate a simple will, leaving an entire estate to the decedent's god-daughter. The problem? The deceased was one of twelve siblings, all of whom predeceased her. Not only this, but the decedent died at age 101, meaning that most of her siblings' children have already died.
The result has been that the decedent has 79 heirs at law. Why does this matter, given that there is only one beneficiary of the will? It matters because the Georgia Code requires service of the petition to probate upon all heirs at law, even if those heirs are not beneficiaries. And by "service," we typically mean a sheriff's deputy delivering the petition to the heirs' doorstep - although out-of-state heirs need only get certified mailings.
Living trusts are better estate planning devices in such cases. When the maker of a living trust dies, and the trust becomes irrevocable, the Georgia Code requires notice only to the beneficiaries of that trust, not to the heirs of the trust-maker (the "settlor"). OCGA § 53-12-242.
Tracking down 79 heirs is a daunting and expensive challenge. In our firm's present case, paying a little more to draft a living trust would have meant great savings for the decedent's heirs.
On Tuesday, the Court of Appeals of Georgia handed down its opinion in In re Estate of Loyd.
The details of that case are fairly mundane in the world of probate litigation. A will was challenged on grounds of undue influence by a disinherited nephew of the deceased.
This blog post is primarily to highlight the take-away from the case for would-be challengers to a will: you may still have rights even if a deadline to object to a will has passed, but the probate court has discretion to limit those rights.
In Loyd, the caveator (objector) to the will filed a late caveat, less than a week past its due date. He was in default, as it is known in our law. This situation can be cured. But, unfortunately for him, the caveator waited ten months before filing his motion to re-open his default as a matter of right.
The Court of Appeals made short work of the issue. The probate court had denied the motion to re-open default, and the Court of Appeals said simply that it had the discretion to do so.
The Georgia Court of Appeals just handed down the case of In re Estate of Helms. In it, the all-too-familiar facts of an heir acting well outside his powers.
In this estate, one of the heirs - one Rowell - was named Executor in the will, but before the will's probate, "acted as a fiduciary without court appointment," receiving in excess of $100,000 in estate assets herself and variously managing the estate without authorization.
Presumably in part because of Rowell's misdeeds, a neutral administrator was appointed to manage the estate.
In other cases reported in this blog, the result of such activity has been a significant award against the misbehaving fiduciary, including punitive damages and attorney fees. In the present case, however, the probate court didn't go that way. There was apparently at least some controversy about the correctness of Rowell's spending, her attorney stating on the record that "we welcome an accounting." Further, the administrator the court appointed "did not pursue a forensic accounting to determine what Rowell had done with estate funds."
Instead, the administrator (1) took it upon herself to reduce Rowell's share by $61,684 and (2) sought a court approval of a plan of distribution based upon that reduction.
The probate court approved that plan, and all but one of the heirs - Rowell herself - agreed to it as well. On appeal, the Court stated that this sort of thing won't hold up. Rowell's poor decision making may indeed have been cause to reduce her final share, but according to the Court of Appeals, at least some evidence must be shown of why a particular reduction is appropriate.
In response to the administrator's argument on appeal, the Court reasoned that, even though the executor was granted the power of "pursuing claims on behalf of estate, it does not follow that the Administrator could arbitrarily choose an amount by which the value of Rowell's distributive share should be adjusted based upon a possible claim against Rowell by the estate or other beneficiaries."
On June 11, 2014, Tanner Pittman volunteered as a pro bono attorney at the Lee County, Alabama, Sheriff's Department, drafting estate planning documents for officers.
The day-long event assisted 30 officers in drafting wills and other essential planning documents.
Credit is due to Samantha Copelan of Haygood, Cleveland, Pierce & Thompson, LLP for her efforts in coordinating the event in conjunction with State Bar representatives.
Tanner Pittman, LLC is a West Georgia law firm that specializes in estate services, civil litigation, and legal transactions.
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