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Contesting a will executed by a deceased loved one is a decision not to be entered into lightly.  There are issues of jeopardizing family harmony and updholding the departed’s last wishes with respect to his/her property.  There are many instances, however, where unfair and outside pressures resulted in the drafting of a new will or the alteration of an existing will, original beneficiaries may have a right to challenge the validity of a final will.

Most successful will challenges involve attacks on the lack of formal execution of the will or the presence of undue influence.  Georgia law requires a certain number of present, uninterested witnesses to view the testator (the person having the will made) sign and execute the will, after which these witnesses make their signatures on the will near the testator’s.  There exist issues for a formal challenge, including the capacity of the testator, presence of witnesses during execution, and many others.

The other most successful means for someone to contest a will is by proving the will was created through undue influence.  Although there is a lot of case law on the subject, in Georgia, undue influence usually involves a beneficiary of a will who pressured the testator into leaving him a considerable portion of the testator’s estate, while the testator was in a weakened or influencial state susceptible to such pressure.  The fact that the beneficiary is someone who would have not have inherited by State intestacy laws and/or had a confidential relationship with the testator can create a rebuttable legal presumption that the bequest was a result of undue influence.  Although there are many other ways to challenge a will, most contests focus on instances where the intent of the testator has been replaced with that of the beneficiary.

You should consult with an attorney as soon as possible to determine what rights to a will challenge you may have.  The attorneys of Larsen & Teusink PC have the knowledge and experience to preserve your rights and to help stop those who sought only to take advantage of your loved ones for their own personal gain.  Contact one of our professionals today to schedule an appointment.  678.553.2923

Posted under Estate Administration, Estate Planning, Probate Law, Probate Procedure, Wills

A typical belief for many married individuals with children is that when a person dies, all of their property, by law, will automatically pass to the surviving spouse.  This could not be further from the truth.

In Georgia, when a decedent dies without a will, intestacy laws require that a surviving spouse share in the estate of the deceased spouse in equal shares with the surviving children to the extent that the surviving spouse’s portion is not less than one-third share.  (O.C.G.A. 53-2-1).

Without a proper will designating a surviving spouse as the sole beneficiary of an estate, a family could find itself in the uneasy and delicate situation of having to divide up all of the deceased parent’s belongings.  This can lead to a lot of unnecessary stress and family infighting amongst relatives. 

Further, if the children decide to resolve the issue by simply gifting over to the surviving parent their respective shares of the estate, the children may incur gift tax liability on the transfer.  The children might also seek to disclaim their prospective interests, but this requires proper paperwork to be filed with the IRS, documents that will likely require drafting by an attorney, as well as adhering to strict rules as to access and control over the property by the persons disclaiming their interests.  This prospect would be more expensive in terms of legal costs than simply hiring an attorney to draft a will in the first place.

Larsen & Teusink, PC has drafted countless wills and legacy plans for many families in Georgia.  With their tax expertise as well, our attorneys will ensure that any tax liability that your estate may incur is minimal or eliminated altogether.  If you have any questions regarding the drafting your first will or reviewing your current legacy plan, please feel free to contact one of our attorneys at 678.553.2923 or visit our website.

Posted under Estate Planning, Tax Law, Wills