Legal Question in Wills and Trusts in Georgia

Your mistake number one was calling the court. They are forbidden by law from giving you advice and certainly told you that.

Your mistake number two is relying on the administrator, who cannot advise you.

If you feel something is amiss, you need to hire a lawyer.

I should note that there is generally NO administrator. If there is a will, there is an executor. There IS a difference.

The county clerk cannot give you legal advice. However, I don't know what "details of the estate" you are asking about. If there is an administrator, it means that there either is no will or that there is a will, but the will did not name an executor or if did name an executor that none of the named executors are willing/able to serve.

Estates files are matters of public record meanining that anyone can access and see the file including you. If there is a will submitted for probate then look in the file and make a copy of it. If there is no will, then the estate will be administered in accordance with the state intestacy laws. I assume that the estate of your uncle is in Georgia. If that is the case, the intestacy law provides:

OCGA � 53-2-1. Rules of inheritance when decedent dies without will; effect of abandonment of child

(c) Except as provided in subsection (d) of this Code section, when a decedent died without a will, the following rules shall determine such decedent's heirs:

(1) Upon the death of an individual who is survived by a spouse but not by any child or other descendant, the spouse is the sole heir. If the decedent is also survived by any child or other descendant, the spouse shall share equally with the children, with the descendants of any deceased child taking that child's share, per stirpes; provided, however, that the spouse's portion shall not be less than a one-third share;

(2) If the decedent is not survived by a spouse, the heirs shall be those relatives, as provided in this Code section, who are in the nearest degree to the decedent in which there is any survivor;

(3) Children of the decedent are in the first degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased child taking, per stirpes, the share that child would have taken if in life;

(4) Parents of the decedent are in the second degree, and those who survive the decedent shall share the estate equally;

(5) Siblings of the decedent are in the third degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased sibling taking, per stirpes, the share that sibling would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no sibling survives the decedent, the nieces and nephews who survive the decedent shall take the estate in equal shares, with the descendants of any deceased niece or nephew taking, per stirpes, the share that niece or nephew would have taken if in life;

(6) Grandparents of the decedent are in the fourth degree, and those who survive the decedent shall share the estate equally;

(7) Uncles and aunts of the decedent are in the fifth degree, and those who survive the decedent shall share the estate equally, with the children of any deceased uncle or aunt taking, per stirpes, the share that uncle or aunt would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no uncle or aunt of the decedent survives the decedent, the first cousins who survive the decedent shall share the estate equally; and

(8) The more remote degrees of kinship shall be determined by counting the number of steps in the chain from the relative to the closest common ancestor of the relative and decedent and the number of steps in the chain from the common ancestor to the decedent. The sum of the steps in the two chains shall be the degree of kinship, and the surviving relatives with the lowest sum shall be in the nearest degree and shall share the estate equally.

(d) Except as provided in Code Sections 19-7-1 and 51-4-4 for the right of recovery for the wrongful death of a child, when a minor child dies without a will, a parent who willfully abandoned his or her minor child and has maintained such abandonment shall lose all right to intestate succession to the minor child's estate and shall not have the right to administer the minor child's estate. A parent who has been deprived of the custody of his or her minor child under an order of a court of competent jurisdiction and who has substantially complied with the support requirements of the order shall not be barred from inheriting from the minor child's estate.

(e) For cases in which abandonment is alleged, the moving party shall file a motion with the probate court requesting the judge to determine the issue of abandonment and shall serve all parties as set forth in subsection (f) of this Code section. A hearing shall be conducted and all parties shall have the opportunity to present evidence regarding the party's relationship with the decedent. The burden of proof to show an abandonment is on the person asserting the abandonment by clear and convincing evidence.

(f) All parties to a motion filed pursuant to subsection (e) of this Code section shall be served in accordance with Chapter 11 of this title. If a party cannot be personally served and the party's interest in an estate is subject to forfeiture pursuant to subsection (d) of this Code section, the judge shall appoint a guardian ad litem for the party. If a party cannot be personally served, the citation shall also be published in the newspaper in which sheriff's advertisements are published in the county where the party was last known to reside.

(g) In the event that a parent is disqualified from taking a distributive share in the estate of a decedent under subsection (d) of this Code section, the estate of such decedent shall be distributed in accordance with subsection (c) of this Code section as though the parent had predeceased the decedent.

So if there is no will, then your uncle's assets will pass to his surviving spouse, if any, and children, if any. If none, then his parents. If they are deceased, then to your uncle's siblings or the sibling's children (i.e. any nieces and nephews). If ther is a will, then you need to see what it says.

If there is no estate file at all, then you may have a problem. There can be no executor or administrator until a petition for letters is filed by an executor or administrator. You do not indicate when the uncle died. If it was last week, then I would not expect an estate to be probated yet. I would wait at least 30-60 days after death. If there is a will and the named executor has not probated it, they can be compelled to produce the will. If no estate is probated 6 months after death then anyone can apply to administrate the estate. Or a public administrator can be appointed, although it is better that a family member do it.

However, if any of these situations exist and you are seeking more details besides who gets your uncle's property/possessions, then you need to see a probate lawyer in the county/state where your uncle lived at the time of his death or where an estate is pending or would be probated.

The executor's/administrator's job in an overly simplied form is to figure out what your uncle owned, what he owed, pay any just debts/claims and distribute what is left to the intestate heirs or beneficiaries under the will. If there are not enough assets to pay the bills, then bills/claims are paid in order of priority and the heirs/beneficiaries may get nothing. If the executor/administrator is not handling things properly as per the will or state intestacy law, then the executor/administrator can be removed. If you suspect something is amiss from your reivew of the file, then you need to see a probate attorney about that.

My advice would be to see if there is an estate file and if so, make a copy of the documents and pay to have them reviewed by a probate attorney. If there is no will and more than 30 days have elapsed, then you also need to see a probate attorney about either compelling the administrator to produce and probate a will or divulge other information about the estate to you.