Legal Question in Wills and Trusts in Georgia

I recently found out my dad died in Dec. 2012. I found out that he executed a deed in favor of my 1/2 sister 2 years before he died, but it wasn't filed until the day after he died. She never told me he died and won't respond to my phone calls. No will has been filed for probate and if there is a will, I don't have it or know its contents.

Can I bring an action seeking cancellation of the deed/inter vivos transfer for undue influence or lack of capacity (he had alcohol dementia)? Or do I need to petition the probate court for letters & sue in the name of the estate? Do I have standing to "protest" the conveyance, independent of probate court, b/c I am an heir?

Asked on 8/09/13, 5:54 am

2 Answers from Attorneys

Robert Gardner Hicks, Massey & Gardner, LLP

You can do all of these things, and you need to find a probate attorney who is willing to pursue all of these avenues. While a signed legal document is presumed valid, proof that he was not competent could invalidate both the will and the deed. As his daughter, if there was no valid will, you are entitled to a share of his estate. There are also some technical issues with regards to the delivery, execution, and filing of the deed regarding the land which may make that a civil issue unrelated to the estate itself. Find a probate attorney asap.

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Answered on 8/09/13, 7:08 am

I agree with Attorney Gardner. You do not indicate where your father lived at the time of his death, what he owned besides this piece of land or any other relevant details. Did your sister have a POA over your father? If so, when was it drafted? What was your father's mental state when he signed this deed? Who is the other owner of the property? Was there a right of survivorship on the deed?

The execution of the deed and the timing of the filing is kind of suspicious but a litigation attorney will have to review this.

What did your father own besides the land? What is the land worth? What are the other probate assets and what are they worth?

Litigation is very costly. You can file documents to compel production of a will or seek to become the personal representative of an estate if there is no will. However, wills or state intestacy laws only govern probate assets. If the land was a joint tenancy with a right of survivorship, that is a non-probate asset. If your sister engaged in undue influence or fraud, then you would have to bring an action against her to have the deed invalidated or to have a constructive trust imposed on the land. You would need a probate litigation attorney or real estate litigation attorney to handle that. The attorney should practice in the county/state where the land is located so/he she will be familiar with the courts. For probate or a will caveat, you will need a probate litigation attorney in the county where your father lived at the time of his death as that is where the estate will need probated Ideally, it would be great if the same attorney could handle both issues but probate/will caveat is a separate legal issue from the action against your sister on the land.

It also concerns me that you did not learn of your father's death until recently. Why? Were you estranged from the family? Obviously you were not in the loop here. I am not judging as I don't know the facts but it looks unseemly when a child has no contact with a parent and suddenly emerges after the parent's death looking for money. It comes as a surprise but there is no right of a child to inherit anything from a parent and the deceased parent, if he/she made a will may completely disinherit a child if the parent so chooses.

There are a whole bunch of family dynamics at work which will be helpful to know - for example did your sister have a power of attorney over your father? Did she provide for his care until he died? It is conceivable that he intentionally wanted her to have the property especially if she was caring for him. On the other hand, she may be greedy too and misused the power of attorney and the fact that she does not respond to your attempts at communication is not a good sign. However, if your father lived with her or in a nursing home then it is conceivable that he had no probate assets and that no will was probated because probate was wholly unnecessary.

So this gets back to your hiring a lawyer. You have to at least pay the lawyer for a consult to review the existing deeds. You need to find out what it is going to cost to either compel the production of a will or to apply for probate and administer the estate as well as bring a lawsuit over the land. You will also have to find out what assets exist for probate and whether at the end of the day it will be cost-effective for you to pursue litigation.

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Answered on 8/09/13, 2:04 pm

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