Legal Question in Wills and Trusts in Georgia

Let me try and help re-affirm some of what you have said and clear up a few misconceptions in your statements above, and then I will give you some great advice.

1.) You are correct, Georgia is NOT a community property state. It is a common law state.

2.) Property owned "with rights of survivorship" are typically not considered part of the estate of the deceased, are distributed "outside" the estate by operation of law, and therefore it does not matter what the will says or doesn't say with regard to this property. As an example, if your father and each of your three siblings owned your father's real property (his house, for instance) as "joint tenants with rights of survivorship", then the real property would AUTOMATICALLY (by operation of law) immediately pass to the remaining joint tenants (the three siblings) upon your father's death regardless of what contradictory language the will may contain. Likewise, if the checking and savings accounts listed the three siblings as joint account holders or "with rights of survivorship", then the contents of those bank accounts would pass directly to the three siblings upon the father's death outside of the estate and regardless of what the language of a probated will may state.

3.) Your statement regarding the surviving spouse being entitled to 1/3 of the estate is not exactly correct. You seem to be referring to the Georgia statute regarding "intestacy", which is the statute which explains what happens when THERE IS NO WILL VALID WILL. If there is not a will, or the will is not valid, then this statute will control how the deceased's estate is distributed (remembering what I discussed above, which is that property "with rights of survivorship" are not considered part of the estate and therefore not subject to distribution via the language of the will). It sounds like in your case there IS a will that has actually been probated, so the intestacy statute will not apply and therefore all the business in your question about the surviving spouse getting 1/3 share is not applicable in this case. Quote the contrary, if the will states that the estate is be divided equally between the 3 siblings and the spouse, then each will receive 1/4 of the estate, not 1/3.

4.) If the spouse is/was the personal representative of the estate, the spouse has a FIDUCIARY DUTY to make sure the estate is administered in the manner set forth in the will and pursuant to Georgia law. The personal representative typically has the right to hire lawyers and banks to help in the proper administration of the estate so that no problems arise. By failing to keep proper accountings of the estate assets, the spouse may have opened herself up to a lawsuit for breaching her fiduciary duty to the estate and the beneficiaries under the will (namely, the 3 siblings).

ADVICE: It is VERY difficult to understand your question without reviewing the will, the probate court filings, and having a face-to-face with you to understand the specifics of your case. THE BEST ADVICE I can give you is to consult a Georgia probate/estate and trusts attorney regarding your situation. That attorney may be able to file for an "injuction" (an order to stop doing something, in this case an order for the spouse to stop spending the estate assets). The attorney can also tell you what your rights and options are, help you decide a proper course of action (and of course, how much that will cost you in attorney fees). You will not get very far and receive a variety of conflicting answers if you continue to surf on-line for the answer to what could be a very complicated case. It is OK to attorney shop -- the economy has been rough on attorneys too and many are willing to be paid in installments (with no money up front) or on a flat fee basis. Be persistent.

Best of luck.*****The above is for informational purposes only and does not create an attorney-client privilege.******

The previous answer you got was correct, and what you posted, frankly, is gibberish. You posted before thatthere was a joint bank account and wondered why you didn't get that money via probate.

Community property is a doctrine that applies in divorce, not probate, and yes, Georgia does not have it. "Common law" is a general concept and has nothing to do with probate.

The point you missed - twice - is JOINT accounts are NOT part of a deceased estate. They belong to the survivor. They do not pass under a will.

Phillip also gave you a good answer. If you still don't believe his answer, and mine, take a couple hundred dollars and schedule a consultation with a lawyer. Given the mixed up things you just posted, it is possible that you left out important facts and a lawyer looking at the paperwork, instead of reading your post, may figure that out.

You are right about Georgia being a common law rather than community property state. Only about 9 states aree community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin). Since Georgia is a common law state, the decedent's property is distributed as per his will.

Your post makes it clear that the man is deceased and that he had a will which left less than the elective share to his wife. Most states provide an elective share to the spouse, but Georgia does not appear to do so. The elective share is basically that you have to give your spouse at least as much as the elective share laws. Since Georgia does not have this, the spouse is limited to whatever the will provided plus her year allowance. If she did not file a petition to claim her year allowance, then she has waived it. She has 2 years from the date of death to file for it, but she is only entitled to support for the year following the date of death.

Of course the wife has to follow the will if she is the personal representative. The problem is that in our society, we have thousands of laws on various subjects. We have laws against murder, but people still do it, right? So getting an answer here is not going to make the wife suddenly have a V-8 moment and do everything right if she is doing things like hiding and stealing as you have claimed.

I still do not understand about the will and the checking account and you have yet to answer the question as to whether the man's name was on it solely. Regardless of what his will said, if he owned the account jointly with another person or persons, the survivors get the money. If the man had the account solely in his name, then the only person authorized to get the money is the personal representative of the estate. The personal representative's duty would be to take the money and put it into the estate account and, after all the bills are paid, distribute what is left to the heirs as per the will.

Was the wife the personal representative? If she is not doing her job properly, then she can be removed and ordered to return monney or items to the estate if she is not entitled to them. If there is some criminality, then you can possibly pursue criminal charges.

What you need to do is stop posting here (you have posted several times already), and take all of the documents to a probate litigation attorney in the county where the estate is probated or where the decedent resided. This case has way too much drama in it and this is something you are not going to be able to handle on your own without an attorney.