An executor is chosen by a testator to carry out the intentions of the will after the testator has died. It’s fairly easy to replace an executor when the testator is still alive – all the testator has to do is simply name a new executor. However, this becomes far more complicated and difficult once the testator has died. While it’s difficult to remove an executor from an estate, it’s not impossible, or even unheard of, to do so.
Why would you want an executor removed from an estate?
An executor is supposed to carry out the intentions of the will and handle the estate in good faith. The executor may not do it perfectly, and the executor is under no obligation to change their performance to the liking of the beneficiaries. So, while some beneficiaries may wish to replace an executor simply because they don’t like them, or they are in conflict, this isn’t good enough. An executor has to demonstrate that they are failing at their duties in order to be removed and that this is likely to continue as long as the executor is in place.
What would you have to show to get an executor removed from an estate?
First, the only people that can seek to get an executor removed are interested parties. These are beneficiaries or any creditor that is seeking compensation from the estate. These beneficiaries or creditors will have to show that the executor is incompetent, is careless, or is intentionally mishandling the estate by wasting it, diverting funds, or stealing. For example, an executor who is illiterate, or refuses to do a proper accounting, who distributes property to non-heirs, or takes money from the estate for himself or herself when he or she is not entitled can be (and probably should be) removed from the estate because these behaviors cause harm to the estate.
These parties can also seek to remove an executor if they can show that the executor has a conflict of interest between his or her executor duties and some other fiduciary duties that cannot be reconciled and makes the executor unable to be fair to the estate. For example, if the executor of an estate also happens to be the vice president of a bank that is suing because it believes it actually owns the title to a property in that estate, the executor has a conflict of interest.
How do you get an executor removed from an estate?
Any interested party that wishes to remove an executor would have to petition the probate court to have the executor removed and present a reason. It’s best to have a Cobb County probate lawyer advise you first and help you with this petition. You will want to get an accounting, if you can, and any evidence of why the executor should be removed. You can also ask the court to temporarily forbid the executor from doing anything to or with the estate until you get a hearing on the matter.
If you would like to discuss your options with an experienced Cobb County County probate lawyer, please call our Marietta probate law firm at 770-425-6060 to schedule a consultation.
One day William’s daughter read in an article that a will was not the best way to leave property to heirs. Wills often involve long and expensive court proceedings and there are other, more efficient ways to pass on savings to family. But William was a person who knew his own mind, and he felt sure that a simple will would be good enough for him.
A will without court approval is nothing more than the paper it’s written on. Wills, by themselves, are not enough to prevent property from staying “stuck” in a decedent’s name. The only way a will could be effective, to give William’s daughter the inheritance he wanted her to have, was for his daughter to go to court after he passed. Courts make sure that wills are valid, debts are paid, and – despite whatever the will may say – whether other family members might also have a legal right to a portion of the estate. Worse, because probate court files are public record, anybody off the street could have open access to all documents filed there, including wills.
So when William’s daughter filed in probate court after he died, she soon found herself besieged by get-rich-quick con artists. William’s estranged second wife’s children showed up to demand a piece of his estate. When a small loan William owed on his house was discovered, a property broker flagged the house for foreclosure and the daughter’s lawyer had to move fast to keep the house off the auction block.
It took over three years to resolve these complications. Even simple probate matters can end up costing between two and eight percent of the total estate value. William’s daughter had to pay around $30,000.00 in court costs, attorneys’ fees, and accounting expenses. She then had a minor traffic accident. Even though nobody was hurt, the other driver sued her and she eventually spent a significant chunk of the rest of her inheritance on attorneys’ fees and court charges.
If only William had heeded his daughter’s advice, these difficulties could have been avoided or minimized. Here is what an experienced Marietta estate planning attorney could have recommended instead.
Making his bank account “POD.” William kept a modest sum in a savings account. He could have left that money to his daughter using a “payable on death” (POD) designation, simply naming his daughter as owner of his account on his passing. Then all his daughter would have to do would be to present William’s death certificate and proper identification, and the bank would pay over the funds to her. No fees, no fuss, no exposure.
Deeding his house. There are several inexpensive and effective options to use deeds to transfer ownership of real estate automatically, without the need for probate. An attorney would know which kind of deed would have suited William best.
Protecting the inheritance. William had several antique cars worth around $50,000.00. An attorney could have created a trust for William, transferred ownership of the cars into the trust, and named his daughter as trustee. As long as the trust was carefully drafted, the money those cars could fetch might have been protected from the accident litigation.
Small-estate proceedings. William’s estate was too large to benefit, but, for smaller holdings, most if not all states permit shortened and simplified proceedings that avoid the costs and delay of full-blown probate proceedings. These go by various names, including “small-estate” or “voluntary-administration,” or “summary-administration” proceedings. As long as an estate is worth less than the upper limit set by law, property can be distributed without the court supervision that probate proceedings otherwise require. The limit varies depending on the state, generally between $30,000.00 and $100,000.00. In Georgia, accounts with less than $10,000 can be transferred by affidavit and without probate and so can automobiles.
When it comes to wills, there are many better alternatives that would have kept William’s financial affairs more-efficiently managed and private. Attorneys know. Please ask. Call our Marietta estate planning lawyers at 770-425-6060 and let us educate you so you can make the decision of what planning tools are best for you and your family.
Stephen M. Worrall, Marietta Estate Planning, Elder Law and Probate Attorney at Georgia Estate Plan: Worrall Law LLC, has been selected to the 2018 Georgia Super Lawyers list. He was named as a Top Estate Planning and Probate Lawyer, one of only 34 named in that practice area in Georgia this year. No more than five percent of the lawyers in the state are selected by Super Lawyers.
Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country.In Georgia, the results are posted in Atlanta Magazine. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in their practice of law. For more information about Super Lawyers, go to SuperLawyers.com. To see Mr. Worrall’s listing, go here.
After the loss of a loved one, there’s so much to do. You need to communicate with family members, plan the funeral, and begin the process of settling their estate. As a Marietta probate lawyer, I can help you along these lines by giving you a list of important documents that you should gather to begin closing out his or her final affairs. The documents needed will vary depending on the person and their assets. As you start preparing, keep your eye out for the following:
- Account statements – This may include bank statements, investment accounts, 401(k)s, IRAs, pensions, health savings accounts, annuities, and 403(b)s. It is best that these statements are dated as close to the date of death as possible.
- Life insurance policies –If you are not sure if your loved one had a life insurance policy, check their bank statements to see if they were making payments to a life insurance company. Some people make their life insurance policy payments yearly instead of monthly. Also, if they were employed, you can check with their employer to see if they had a life insurance policy through their company. If they once served in the military you should check with the Department of Veterans Affairs as well.
- Beneficiary designations – These may include beneficiary designations for life insurance, retirement accounts (IRAs, 401(k)s, 403(b)s, and annuities), payable on death accounts, transfer on death accounts, and health savings accounts.
- Deeds for real estate – If the deeds are not available, many states will now allow you to view and print copies of deeds online.
- Automobile and boat titles – If you cannot locate these, you can contact the department of motor vehicles.
- Stock and bond certificates – Including cooperate certificates and local and state bonds.
- Business documents – If your loved one owned a small business, it is important to locate important documents for the company as well. These may include bank and investment statements, corporate records, tax returns, business licenses, deeds for property, loan documents, contracts, bills, and employee records.
- Bills – This will include utilities, cell phones, credit cards, personal loans, property taxes, insurance (real estate, automobile, boat), storage units, medical bills, and the funeral bill. Check their bank statements to see if the deceased was making regular payments to a company and contact that company for copies of the bills.
- Estate planning documents – Last Will and Testament, revocable living trust, etc.
- Other legal documents – Prenuptial Agreement, Postnuptial Agreement, leases (real estate, automobile), and loan documents (personal loans, mortgages, lines of credit).
- Tax returns – Both federal and state returns for the last 3 years.
- Death certificate – It is advised to order at least 10 copies of the original death certificate so you don’t have to keep ordering them.
If you are overwhelmed and would like help in settling your parent’s affairs, feel free to call our Marietta probate lawyers at 770-425-6060, and we can help you get through the process as quickly as possible.
As a Marietta Probate Lawyer, I’m commonly asked, “What are the most important steps I need to take after the death of a loved one?”
While each situation is different, there are eight general tasks that I advise families to start with when attempting to finalize their loved one’s affairs and close out the estate. They are as follows:
- Secure all property– Secure and lock up all property and valuables, including garages and sheds. This will help keep your loved one’s property safe from theft and vandalism, while also preventing other family members from removing items before the estate is divided.
- Request certified copies of the death certificate- You will typically need several copies of a death certificate after the loss of a loved one. You can usually order them from the funeral home, or you can apply for them. You will need the certificate to claim SSI benefits, transfer property, close out bank accounts, and handle any other financial affairs.
- Freeze financial accounts– You will first need to take an inventory of your loved one’s financial affairs as soon as possible after their passing. Then, be sure to stop all automatic debits, and place a freeze on all bank accounts and credit cards that are not jointly owned.
- Locate estate planning documents, and contact a probate attorney– Common places where estate planning documents are stored include home safes, within boxes of financial files, and bank safety deposit boxes. You can also contact your loved one’s estate lawyer following their death for help locating a will or trust.
- Relocate abandoned pets– If your loved one lived alone, you will need to rehome their pets with another family member, friend, or shelter. Some people create pet trusts as part of their estate plan to provide for the continued care of their animals after they are gone. You can check with your loved one’s attorney to see if this had been done prior to your loved one’s passing.
- Contact social security– Always call Social Security upon the death of a loved one. You can reach them at 1-800-772-1213. Once they are notified of your loved one’s passing, benefits will be stopped, and you can then inquire about surviving benefits for a spouse or a child.
- Open Benefit Claims– If your loved one had a life insurance policy or was entitled to death benefits, you will need to contact the applicable company to start your claim.
- Consider long-term care for the surviving spouse– If your loved one left behind a spouse that he or she cared for, you may need to start inquiring about long-term care services to help if the surviving spouse will now live alone.
Of course, there may be additional steps to take depending on the circumstances of the deceased’s estate. If you have any questions, you can contact our Marietta probate lawyers at 770-425-6060 to set up a consultation today.
Heirs at Law in Georgia
As a Cobb County probate lawyer, the question often arises: “What happens if I die without a will in Georgia? Who gets my stuff?”
The following outline is a summary of the Georgia law that determines who are heirs at law of a decedent (the person whose death without a will (intestacy)) requires the administration of his or her estate). The actual statute may be found in the Official Code of Georgia Annotated (OCGA) Section 53-2-1.
The heirs are:
- The spouse if there are no children (and no children who died before the decedent leaving living children of their own or descendants of living children)
- The spouse and children if there are children, and the children of any child or children who died before the decedent (as well as the deceased child’s descendants if any of the deceased child’s children also predeceased the decedent)
- The parents if there is no spouse or children, descendants of deceased children, grandchildren, etc.
- If no spouse, children, descendants of children, or parents survived the decedent, the brothers and sisters of the decedent and the descendants of any deceased brother or sister who predeceased the decedent
- If none of the above were living at decedent’s death, the grandparents
- If none of the above, uncles and aunts and descendants of any deceased uncle or aunt, but if all uncles and aunts are deceased, then first cousins share equally, rather than siblings taking their parent’s share
The more remote degrees of kinship are determined by a mathematical formula involving the relative in question and the closest common ancestor. If you have gotten this far, please consult OCGA sec. 53-2-1(b)(8). You may also need the assistance of a Georgia probate attorney. This information is also available in the form of a flow chart.
SOURCE: Athens-Clarke County.