Administering the estate of a loved one can be a daunting and time-consuming task. Additionally, acting as Executor of an estate subjects the individual serving to various duties and liabilities. If you have been named as the executor in a last will and testament you are not automatically required to serve or even probate the estate. However, it is important to note that if you are in possession of the Last Will and Testament, you are required to file the will with the probate court of proper jurisdiction. (See, O.C.G.A. §53-5-5 – “A person having possession of a will shall file it with reasonable promptness with the probate court of the county having jurisdiction.”) If the Last Will and Testament is offered for probate (either in solemn form or common form) and you are the named Executor, you may file a renunciation of your right to serve as the Executor. The renunciation must be in writing, state your intent to renounce your right to serve, and be notarized. To learn more about the probate process and your rights as the named Executor, please contact O’Dell & O’Neal.
Justin O’Dell appeared before the Federal 11th Circuit Court of Appeals on October 4, 2008 for an oral argument in the matter of Antonio Duscio, et al v. Al Hill, et al, United States Court of Appeals for the Eleventh Circuit, Case No. 17-13651-F. O’Dell & O’Neal is currently representing investors who have been defrauded in a Ponzi scheme related to the sale of life settlement policies and securities.
In almost every case that reaches a judge, one side will leave the courtroom unhappy with the outcome. While this is often not due to any wrongdoing on the judge or attorneys’ end, sometimes a judgment is handed down that fails to consider key evidence or relies on faulty legal precedent. In such cases, an appeal may be an appropriate option to consider. However, there are numerous different types of appeals depending on the nature of the case and judgment entered, and each comes rife with its own set of procedural “traps for the unwary” that can keep your appeal from moving forward. The timeline for filing an appeal starts the moment the judgment is filed, and it is extremely important for the appealing party to understand the type of appeal that they are dealing with, and have a comprehensive grasp of the appellate rules to follow to ensure that their appeal is not dismissed for failure to follow the proper procedures.
Many times, the original will of a decedent cannot be located. However, an estate can still be probated even in the absence of the original will. In Georgia, if a will cannot be found there is a presumption that it was revoked by the testator (the individual who executed the will). This presumption may be overcome and a copy of the original will can be admitted to probate. Overcoming the presumption of revocation may be achieved by showing that the will was destroyed or lost after the testator died. The individual offering the copy of the Will may offer circumstantial or direct evidence to rebut the presumption that the will was revoked. Testimony from individuals who witnessed the execution of the original will are most helpful in this endeavor.
O.C.G.A. §19-7-3 governs visitation for family members. Family members in this statute is defined as grandparents, great-grandparents, or siblings. O.C.G.A. §19-7-3(a)(1). As a grandparent, you have the legal right to exercise visitation with your grandchild. Grandparents can file an original action seeking visitation or intervene in a pending action where the issue of custody, divorce of the parent(s), termination of parental rights, visitation or adoption is before the court. O.C.G.A. §19-7-3(b)(1)(B).
As a grandparent, the court may grant you visitation if it finds by clear and convincing evidence that the health and welfare of your grandchild would be harmed unless you are granted visitation and if the best interests of your grandchild would be served by such visitation. O.C.G.A §19-7-3(c)(1). When considering whether the health and welfare of your grandchild would be harmed, the court shall consider and may find that harm to your grandchild will likely result when prior to bringing an action for visitation, your grandchild lived with you for six months or more, you provided financial support for the basic needs of your grandchild for at least one year, you had an established pattern of regular visitation or child care with your grandchild or “any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.” Id.
There is a rebuttable presumption that if you had a preexisting relationship with your grandchild, he may suffer emotional injury that is harmful to his health if your grandchild is denied any contact with you or is not provided some minimal opportunity for contact with you. O.C.G.A §19-7-3(c)(3).
For some grandparents, exercising visitation with their grandchild is not as simple as calling to make arrangements with a parent. If you are among the many grandparents who are being denied access to their grandchildren contact an attorney today to learn more about your specific rights to visitation with your grandchild.
I grew up in East Cobb, graduating from Pope High School, and then made my way to Athens, Georgia, where I attended the University of Georgia. After realizing that four years spent in Athens simply would not cut it, I enrolled in the University of Georgia School of Law. Athens and UGA will always hold a special place in my heart, but I am so excited and grateful to be able to return to Marietta to pursue my legal career.
Being the first into my family to pursue a legal career, I had no idea of what to expect, from taking the LSAT, to going through law school, and now actually engaging in the practice of law. Fortunately, I had some fantastic professionals who work in the legal field to mentor me along the way. I believe that, no matter what profession one pursues, it is crucial that they do their best to surround themselves with people who can help them, and build and foster relationships with those people. The wisdom and advice that my mentors provided to me was invaluable, and I still lean on them for support and mentorship to this day.
After passing the bar exam and being sworn in, in order to become fully licensed to practice law in the state of Georgia, new lawyers must complete what is called the Transition Into Law Practice Program (TILPP). This program requires new lawyers to partner with a mentor who can guide you through the practice of law by giving you the opportunity to gain experience with both legal and community work that would be expected of a lawyer. Such activities include introduction to the legal community and the community at large, introduction to law office management, working with clients, advocacy experience, closing and transactional work, the obligation of attorneys to others, and negotiations. TILPP is a great program for new lawyers because it provides them with the opportunity to gain practical experience that many students may not have received in law school, and ultimately results in producing better attorneys for the citizens of Georgia and beyond.
I have always wanted to use my tools and talents to help others, and I have come to realize that attorneys are uniquely situated to assist people in some of their most dire times of need. As one of my professors and mentors in law school once told me: “Law school is about the law, law practice is about people.” I am appreciative of the opportunity to work at O’Dell & O’Neal, because of their commitment to this principle, and I hope to continue to grow and learn from the excellent attorneys who work here.
Pursuant to Uniform Superior Court Rule 24.2, in all cases involving temporary or permanent child support, alimony, equitable division of property, modification of child support or alimony or attorney’s fees, all parties are required to submit a Domestic Relations Financial Affidavit (“DRFA”). Unless otherwise ordered by the Court, if you file your case with an agreement or consent order resolving all issues (except divorce) you are not required to file a DRFA. Your DRFA is a summary of your average monthly income and average monthly expenses including payments to any creditors. It will also include a summary of your assets (value of your home, vehicle etc.) You are required to file the DRFA 5 days before any temporary hearing or mediation. If you later amend your DRFA for any reason you must file the DRFA 5 days before the final trial.
Your DRFA is important because it assists the Court in reviewing your financial circumstances and in making decisions. For example, if you are requesting alimony which is based on need and ability to pay, the Court will look at your available resources and what your expenses are in determining whether and how much to award you in alimony. When preparing your DRFA keep in mind that your expenses may not be the same exact amount each month so you will need to average your expenses. The DRFA is important so be accurate as possible when completing. Be sure to discuss your DRFA with your attorney and gather any documents supporting your numbers.
When a loved one dies you may be left with several questions, including what do I do with their Last Will & Testament? Under Georgia law, a person in possession of a Last Will & Testament has an affirmative duty to file it with reasonable promptness with the probate court of the county having jurisdiction. See, O.C.G.A. §53-5-5. However, filing the Will with Probate Court is not the same as formally offering the Will for Probate. To formally initiate the probate process, you must file the requisite petition with the court in addition to filing the Will. Generally, the named Executor of the Will is responsible for offering the Will for Probate. If for any reason the executor fails to offer the will for probate with reasonable promptness, or if no executor is named, any interested person may offer the will for probate.
If you find yourself in possession of the deceased’s Will, the first step will be to check the Will to see if an Executor is named. If so, you should contact the Executor and discuss moving forward with initiating the probate procedure, including filing the Will with the court. If there is no named Executor in the Will, you may be permitted to file the Will and initiate the probate process yourself. Schedule a consultation to discuss the probate process and what responsibilities you may have as a holder of a Will.