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 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.
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.
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.
Your Facebook account. A lifetime of personal emails. All your bank passwords.
These are all things that your will won't pass on to your heirs. And chances are high that they'll be lost forever.
That's quite a loss when you consider it. Today, our personal email accounts are like an intimate journal of our lives and include correspondence with loved ones, cherished photographs, and important information that should be could be passed on to future generations.
This is to say nothing of the financial mess that we all have online. The average person has literally dozens of passwords to online accounts, none of which survive his death.
Planning is the answer to all this.
This firm yearly encourages clients to keep digital and hard-copy lists of email accounts, financial passwords, and other such information securely in the hands of a trusted loved one.
A recent Seattle Times article provides even more insight. The estate planning attorney quoted therein, James Lamm, says that a "digital will" has three basic steps:
"First, do a complete inventory of all digital accounts and assets so that your estate administrator will know just what you have of potential value (or liability) and where it is. Second, assemble a list of all passwords. Third, select a fiduciary and give them the proper power of attorney to administer your estate."
Another note: It is possible to access the gmail, yahoo, or hotmail accounts of a deceased individual. This blog explains how. See also here for another step-by-step guide to preparing your "digital will."
Tanner Pittman, LLC is an estate planning and probate law firm that regularly advises clients on such matters as digital wills.
For a number of reasons (capital gains tax not the least among them) many people choose to leave property to their heirs by will rather than lifetime gift.
But wills are static, whereas people's wishes for their heirs change over time. Naturally, wills can be amended, which allows you to account for changes. But an amendment (or "codicil") to a will is time consuming and often expensive.
Many people, furthermore, find that would-be heirs receive unequal treatment during their lives as time passes. Take, for example, a couple with three children, Anna, Ben, and Christie. The couple write wills when the children are young, and thirty years go by. As the children aged, Anna and Ben paid their way through college and now support their own families.
Christie, on the other hand, would have dropped out of junior college but for her parents' money. Narrowly passing during her first two years, she later transferred to a state school to study hotel management, where she required even further help with tuition and expenses. Still later, Christie had two children, then divorced. Though she received custody of the children, Christie was not self-sufficient financially, and her parents helped raise their grandchildren.
The couple's original will had provided that the estate should pass in equal shares to Anna, Ben, and Christie. Thirty years after its drafting, this doesn't seem fair, since Christie had received a great deal of the parents' wealth during their lives.
So should the parents have re-drafted their will after every gift to Christie? Every five years? After 30 years? Regardless of when they're done, amendments to a will have the same effect: they freeze one's wishes in time, adapted only to the then-present set of circumstances.
[Click "read more" below.]
In divorce actions, the family dog often keeps couples in court longer than the bank accounts.
In estates, it's the heirloom quilt, the favorite sweater, or the bird-hunting gun that causes the most acrimony among heirs.
If drafters of wills and trusts want to avoid squabbling among their heirs, they would do well to give some thought to how their huge inventory of personal property should be divided .
A frequently used method among estate attorneys is the family "auction." An executor dividing up an estate may allow heirs to "bid" for items, using not cash but an "account" consisting of the total amount to which they would have been entitled pursuant to the will.
As an example, suppose an estate has three heirs and (for simplicity's sake) fifteen items of personal property. The executor gives each heir five credits and tells them to select five pieces of property from the fifteen. Naturally, at some point, two heirs will want the same one piece of property - say an heirloom broach. The executor then allows these heirs to "bid" on the broach with their five credits. The highest bidder allocates four credits and is given the broach. The credits are then divvied up among the other two heirs , who use them to bid on the remaining property.
This scheme can be used a myriad of different ways as long as the goal of the "auction" is an equal distribution of the property according to its subjective value.
One more note: at least one website, E-divvy-up (edivvyup.com) allows heirs to do exactly this via an online auction. For $49 per auction, many estate executors may find its services well worth the price and a solid way to avoid family acrimony or possible litigation.
Tanner Pittman, LLC advises clients on probate and estate settlements and is experienced in litigation involving probate matters.
Not infrequent is the case in which an executor of an estate or relative of a decedent begins to parcel out estate property before granted authority by the court.
In a recent case handled by this firm, the son of the decedent began giving furniture and heirlooms to grandchildren long before the will was found and probated. Fortunately for that son, the matter was settled before the son was could be sued for his misdeeds.
Explaining why family members of a deceased do this is not hard: they "know the deceased wishes" or are "just doing what's fair."
In the case of In re Estate of Tarpley, just handed down by the Court of Appeals, the high price of doing this is made manifest. In it, an executrix and sole heir of an estate sold an automobile belonging to the deceased for $12,000 before probate was complete. Later, and after the will was overturned for lack of testamentary capacity, the executrix found herself trying to cover up what was an improper disposition of estate property.
Before the appeal was finished in Tarpley, the executor (since removed from office) owed the estate $96,433.73 in compensatory and punitive damages.
About half of this damages award was overturned on appeal; nevertheless because of the Georgia law regarding executors de son tort, damages in the case of bad actors in estates can be quite harsh.
The full text of the case follows below. Click on the "read more" link.
Tanner Pittman, LLC is a West Georgia law firm that specializes in estate services, civil litigation, and legal transactions.
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