Georgia Wills, Trusts, Probate and Estate Planning Blog

Mistress battles Cobb millionaire's kin over estate

Cobb County millionaire Harvey Strother had three weeks to live when his mistress wheeled him into his lawyer's office to change his will one last time.

Strother, 77 and fading fast, was drinking a gallon or more of wine a day, according to court testimony. The tortured alcoholic barely resembled the vibrant salesman who racked up a fortune with car dealerships in Cobb and south Georgia.

Anne Melican, his mistress of seven years, accompanied the wheelchair-bound Strother into the Naples, Fla., law office on Dec. 16, 2003. With an unsteady hand, Strother changed his will so Melican would be left with a South Florida property, plus a slip at a yacht club where they'd docked his boat, the Lady Anne. He also directed his estate to pay off the balance on a Cape Cod, Mass., condo he built for her.

It was the second time in six months Strother had amended his will and the third time in six years. All told, the changes left about $6 million of Strother's $37 million estate to Melican and her son, including $7,900 a month for Melican for the rest of her life and a $1.3 million Marco Island, Fla., condo.

Were these amendments the wishes of a sound mind and the product of Strother's desire to take care of Melican after his death? Or did Melican take advantage of an addled alcoholic, unduly influencing Strother to ensure she'd get millions?

Marietta lawyer Sidney Parker, the executor of Strother's estate, and one of Strother's grandchildren say it's the latter, and a Cobb Probate Court judge has ruled that a jury should decide whether the amendments are valid.

The Melicans have appealed to the Georgia Supreme Court, which is expected to issue an opinion in the coming weeks.

In 1988, Strother signed a will leaving half his estate to his widow, Betty, and the rest to his three children and grandchildren.

"We believe she took advantage of Harvey at a time he was very vulnerable, weak and struggling," said former Gov. Roy Barnes, who represents the executor. "With Anne Melican, it was always one way: What do I get? What does my son get? It was everything to her benefit."

In a telephone interview, Melican strongly disagreed with that characterization.

Avoiding Probate

The probate process serves the vital purpose of ensuring that an individual's estate is properly distributed to his or her creditors, heirs and beneficiaries. But, the probate process can be slow and can often tie up estate property for several months. Probate may also be costly, with certain fees being paid out of the estate and reducing the amount left for distribution. For these reasons, many people may wish to arrange their affairs so that their loved ones do not have to go through the probate process, and can receive assets from the estate more efficiently. 

There are several methods that can be used to avoid the probate process, and to distribute assets immediately at the time of the decedent's death. Among these methods are:

• Joint Ownership with Rights of Survivorship;
• Beneficiary Designation; and
• Revocable Living Trusts.

Joint Ownership with Rights of Survivorship

Property owned in joint tenancy with rights of survivorship automatically passes, without probate, to the surviving owner or owners when one owner dies.  Joint tenancy is simply a type of property ownership involving more than one owner, leaving each owner with the right to a larger share of the property should any individual owner die.  This model often works well when couples (married or not) acquire real estate, vehicles, bank accounts, securities, or other valuable property together.  To take joint title with someone usually only requires that joint ownership is stated on the paper that shows ownership (i.e., car title, a real estate deed, or other document).  But since each joint tenant has control over the property, you should be careful when committing to this type of ownership.

Types of Probate

• Supervised: The most formal and expensive method. The court plays an active role in approving each transaction. In states where it's optional, supervised administration is used for contested estates, when an interested party requests it, or when the executor's ability is questioned.
• Unsupervised or independent: A simpler, cheaper method in which the number of duties and procedures is reduced and the court's role is diminished or eliminated. It's used for estates that exceed the asset limit for small-estate administration (see below) but don't require heavy court supervision. It often requires consent of all beneficiaries, unless the will specifically requests unsupervised administration.
• Small estate: The simplest and fastest probate, it's not available in every state and where it is only for small estates, ranging from $1,000 to $100,000, depending on state law. Property is often transferred by affidavit. Small estate administration often lasts only a few weeks.

ABA Guide to Wills and Estates
Copyright 1999, 2000, 2002 American Bar Association

SOURCE: FindLaw

The Probate Basics

Introduction

The legal process of transferring of property upon a person's death is known as "probate." Although probate customs and laws have changed over time, the purpose has remained much the same: people formalize their intentions as to the transfer of their property at the time of their death (typically in a will), their property is collected, certain debts are paid from the estate, and the property is distributed.

Probate Administration

Today the probate process is a court-supervised process that is designed to sort out the transfer of a person's property at death.  Property subject to the probate process is that owned by a person at death, which does not pass to others by designation or ownership (i.e. life insurance policies and "payable on death" bank accounts). A common expression you may have heard is "probating a will."  This describes the process by which a person shows the court that the decedent (the person who died) followed all legal formalities in drafting his or her will.  What is often taught about the probate process is how to avoid it.  The movement to avoid probate is primarily motivated by the desire to avoid probate fees.  It is, in fact, quite possible to avoid the probate process completely. There are three primary ways to avoid probate and its protections: joint ownership with the right of survivorship, gifts, and revocable trusts. The probate system, however, exists for the protection of all the parties involved and the focus of this article is what occurs in probate.

Intake Questionnaire: Initial Meeting With Probate Lawyer

If you are a responsible family member of a deceased person who died without a will or have been named as the "executor" or "personal representative" in a deceased person's will, it is advisable that you seek the counsel of an experienced probate lawyer to help you through the probate process. In order to do the best possible job, your attorney needs information about the deceased, the deceased's estate plan, and the deceased's assets and liabilities. At your first meeting with your attorney, you should be prepared to provide, as applicable, the following information:

Frequently Asked Questions About Probate

What are the first legal steps I should take after someone dies?
The first step is to determine whether the individual who has died left a will. If there is a will, then the executor or some other person may offer the will for probate in the Probate Court.

Even if the will is not going to be probated, anyone who is in possession of the will of a decedent must bring the will to the Probate Court for filing.

If there is no will, then the usual procedure is to have an administrator appointed to take care of the decedent's estate.

Whether or not there is a will, if a spouse or minor child (under age 18) survives the decedent, they may want to consider whether to file for Year's Support.

You may want to consult our webpage on this subject, What to do When a Loved One Dies.

Do I need to have a lawyer?
People are not required to have a lawyer to represent them, but in many cases it is advisable to have a lawyer. The Clerks of the Probate Court may not serve as your legal advisors, and you should not expect them to perform legal or clerical services for you. They work for and at the direction of the Probate Judge. It is their responsibility to process the volume of paperwork filed in the office and to attend to the administrative aspects of the operation of this office. They are here to serve you, and they will want to do so to the best of their abilities. They are not allowed to complete any paperwork for you, nor can they make a legal determination or advise you on which proceeding is most appropriate or advisable.

The information on this web page and the Probate Court Standard Forms are designed to help you perform simple filings on your own. However, if you find that the filing is more difficult than you expected, you should seek the assistance of an attorney. A lawyer may not cost as much as you think.
When deciding whether or not to hire an attorney, you may want to consider how important the outcome of the case is to you. In a guardianship case, you are advised that an attorney will be appointed who will vigorously represent the Ward and who will oppose the guardianship if that is what the Ward wishes.

To which Probate Court should I go?
The Probate Court in the county where the decedent was living at the time he or she died.

What is the procedure in the Probate Court?
First, a formal document, called a petition, must be filed.

For most routine petitions, you are required to use a form that is standard throughout Georgia. The forms are available at the courthouse or online. They may also be completed online at that web site.
If you have questions about what to put in a certain blank of a form, you should write down in your own words what happened (or what the circumstances are, or what other factual information is required).
Next, you file the petition and pay the filing fees. The clerks will tell you what fees are due when you have finished filling out the petition.

Notice is given to the people who might be affected if the petition is granted.

If no one objects after notice is given and after the deadline for objections has passed, the Court will either have a hearing or will issue an order, depending on the case.

Can a clerk tell me if I filled out a form correctly?
A clerk cannot tell you whether the information you have provided is complete or correct; only you know whether it is correct or complete.

I can't read or write. Can a clerk fill out the forms for me?
A clerk can fill in the form for you, but you must tell her what information to put down. She can write down what you say and read it back to you to make sure that is what you said.

Can I see the Judge before the hearing takes place?
The judge talks with all parties in a case at the same time. You would not want the judge to be talking to the other side about your case if you were not present. You will be notified by mail when the case is scheduled for a hearing. Then you can talk to the judge.

What will happen in court?
The judge will call on the petitioner(s) to present their case first. Each witness will be questioned in turn. Then, the judge will call on the other side to present its case. The lawyers and the judge will ask questions if needed. After all evidence, the judge will either announce her decision or that she will consider it further. A written order will then be issued.

What happens if I don't go to the hearing?
The judge will decide the case based on the evidence presented at the hearing. If another party objects to your petition, or if you are the only one objecting, and you present no evidence, you run the risk of losing your case.

SOURCE: Probate Court of Athens-Clarke County

What to Do When a Loved One Dies

-INTRODUCTION-

There are a number of different proceedings which may be filed in the Probate Court following the death of a Georgia resident or a non-resident owning property in the State of Georgia. Proceedings are filed in the Probate Court of the county of the deceased person's residence in Georgia or in the county where property of a non-resident is located.

This page briefly describes the usual, initial proceedings. For each proceeding described, there is a standard form, which the Court will provide to any petitioner.

It is suggested that you discuss the matters of concern with an attorney who practices probate or estate law. The attorney can assist you in determining which proceeding is the most appropriate for your particular situation. Very often, there are other matters (e.g., tax returns, preparation of deeds, title transfers, etc.) which may also make it appropriate or necessary to seek the services of an attorney.

If you proceed without an attorney, it will be your responsibility to determine or select the proceeding appropriate to your situation. The staff of the Probate Court may not make the determination or selection for you, since to do so may constitute the unauthorized practice of law. Neither the Court nor the County can accept responsibility for incorrect decisions made by the staff, and they have been directed to refrain from giving that kind of advice.

It is also your responsibility to properly complete all forms, which must either be typed or legibly printed in black ink. The staff are not permitted to perform clerical tasks for the public. The staff will be able to answer any basic questions about the standard forms and about any deadlines for the filing of proceedings. They will also be able to schedule uncontested hearings and tell you how other matters are scheduled by the Court.

The Probate Judge is required by law to remain impartial to all parties. The Judge must treat every case as though it may become contested. Therefore, the Judge also may not advise you on which proceeding is most appropriate to your case. The Judge is prohibited from discussing the facts or evidence in any contested case with a party unless all parties are present. You should not ask to discuss your case privately with the Judge, and you should understand if the Judge stops any discussion which appears to require the presence of others.

GEORGIA PROBATE PROCEEDINGS : WHEN THERE IS NO WILL

There is a cost set by law for the filing of every new probate proceeding, as well as for most pleadings filed after the initial filing, including objections, caveats and claims. There is a minimum deposit toward costs required for every new proceeding which must be paid in advance. Unless otherwise ordered or directed by the court, costs are the responsibility of the person filing the original proceeding, and full payment of any balance due may be required prior to issuance of a final order. A party filing an objection or caveat to a pending proceeding or a creditor filing a claim must pay the fee for the filing of same before the court is required to accept it for filing.

Court costs are considered an expense of administration under law, having a priority over other debts and claims, and must be paid by the personal representative of the estate prior to the payment of other debts and prior to distribution to heirs or beneficiaries. The failure or refusal to pay court costs may result in the dismissal of proceedings, the removal of the personal representative or other actions by the court to assure and receive payment.

SOURCE: Judicial Branch of Georgia

GEORGIA PROBATE PROCEEDINGS : PENALTIES FOR FILING FRIVOLOUS PLEADINGS, ETC.

Caution is particularly given to persons representing themselves in court that there are provisions under Georgia law for the assessment of penalties against anyone who files false, frivolous, vexatious or groundless pleadings. These penalties may include the dismissal of such pleadings, the assessment of costs of court and attorney’s fees against the offending party, and other remedies appropriate to the particular case. Additionally, there are similar penalties for the failure or refusal, without just cause, to respond to proper discovery requests.

Generally, one must have “legal grounds” for objecting to or for filing a caveat to a probate proceeding. Because of the penalty provisions briefly discussed above, it is especially recommended that legal advice be sought before the filing of an objection or caveat to a pending probate proceeding.

SOURCE: Judicial Branch of Georgia

GEORGIA PROBATE PROCEEDINGS : PROCEEDING WITHOUT AN ATTORNEY “PROCEEDING PRO SE”

If you proceed without an attorney, i.e., pro se (a Latin phrase meaning “for one’s self”), it will be your responsibility to determine or select the proceeding appropriate to your situation. The staff of the Probate Court may not make the determination or selection for you, since to do so may constitute the unauthorized practice of law, a misdemeanor crime under Georgia law. Neither the Court nor the County can accept responsibility for incorrect decisions made by the staff, and they have been directed to refrain from giving that kind of advice.

It will also be your responsibility to properly complete all forms, which must either be typed or legibly printed, and to assure the sufficiency and accuracy of all required information. The staff are not permitted to perform clerical tasks for the public and cannot accept responsibility for determining the legal sufficiency of the information required for any proceeding or form. The staff will be able to answer any basic questions about the standard forms and about any deadlines for the filing of proceedings. They will also be able to schedule uncontested hearings and tell you how other matters are scheduled by the Court.

The Probate Judge is required by law to remain impartial to all parties. The Judge must treat every case as though it may become contested. Therefore, the Judge also may not advise you on which proceeding is the most appropriate to your case. The Judge is prohibited from discussing the facts or evidence in any contested case with one party unless all parties are present or represented. You should not ask to discuss your case privately with the Judge, and you should understand if the Judge stops any discussion which appears to require the presence of others.

Furthermore, if you proceed without an attorney, it will be your responsibility to make arrangements for personal service on all persons upon whom personal service is required, to assure the filing of a proper return of service on all such persons, to assure the publication of any notices not performed by the court or its staff, and to secure the presence of or interrogatories from any witnesses whose testimony is necessary under law or desired by you for the presentation of your case. If the matter is contested, it will be your further responsibility to prepare yourself and your case for trial, including the pursuit of and response to discovery.

It is the responsibility for all such matters which would be assumed by an attorney employed to represent you, and you are again encouraged to consult first with an attorney before deciding whether to proceed pro se.

SOURCE: Judicial Branch of Georgia