Legal Question in Wills and Trusts in Georgia

Can probate be held up if heirs do not sign documents?

My Mom died 1/1/05. Prior to that, she left NY 8/2003 and had a new Will drawn up before leaving to reside with my brother in Georgia.

I contacted this new attorney and was told that the latest Will just had me down as a Beneficiary allowing me a specific amount ($75,000). The other Beneficiaries were her Grandchildren (my sister, their mom, was the only other sibling; she is deceased) which she allowed them also a specific amount each ($10,000).

This new Will was drastically changed; we even believe she was wrongly coerced and pressured to sign to these terms. And of course, there is a no contest clause attached.

My nephew, who is an attorney, may refuse to sign/return the Petition To Probate and acknowledge any documents. What happens if he does this? Will probate be held up? Will we otherwise be able to receive our inheritance, etc? Could this be looked at an indirect contest? What can we do? Please advise?

Asked on 2/23/05, 12:17 pm

2 Answers from Attorneys

John Etheriedge Etheriedge & Associates, PC

Re: Can probate be held up if heirs do not sign documents?

Under GA law, heirs are entitled to notice & copies of the probate petition & the Will submitted for probate. Typically, the petitioner (the person seeking to have the particular Will probated) will forward copies of the relevant documents to the heirs along with a form entitled, "Acknowledgement & Consent," and request that the heir sign and return the Acknowledgement & Consent if they have no objections for the purpose of speeding up the probate process. If an heir fails or refuses to sign & return the Acknowledgement & Consent, this does not prevent the probate of the Will. It only forces the petitioner to follow through with formal service of the petition & Will on the heir. The heir will then have a specified period of time from the date of formal service in which to file a written objection with the probate court. If no timely objection is filed, then the Will will be probated as requested by the petitioner. If a written objection is filed by the heir, however, the court will schedule a hearing date and the parties will have an opportunity to submit their arguments to the court. Thereafter, the court will render a decision, granting or denying the petition to probate the Will.

An heir has no obligation to sign or return the Acknowledgement & Consent, and a failure to do so should not be considered a challenge to the Will (i.e., it should not violate the in terrorem clause in the Will).

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Answered on 2/23/05, 4:09 pm
Andrew Nitzberg Andrew Nitzberg & Associates

Re: Can probate be held up if heirs do not sign documents?

My condolences on your loss. I lost my father not long ago and I remember my immediate feelings. This must be doubly hard with the change in will.

If you choose to suggest 'undue influence' or other means to invalidate the new will, then that will fulfill the legal definition of "contest".

On the other hand, if the nephew is a beneficiary under the new will and also the drafter of the will, you have an almost 'slam-dunk' in reinstating the old will.

The fact that the new will was made so closely to the loss of life will help you.

If the nephew is the executor of the will and declines to probate, then he can be removed. If declines to sign the standard acknowledgements, the probate process can continue without them if an 'affidavit of service' is provided by the executor. He can stop nothing.

If you contest, it sounds like you have a possible winner. But, like any lawyer, I would want to see more documents and evidence before I would recommend any specific action. I will say this is worth looking into.

You are welcome to a consultation for no fee.

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Answered on 2/23/05, 4:21 pm

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