Legal Question in Wills and Trusts in Georgia

When something has been motioned in the probate court and the judge hasn't ruled on it, can you still file a Civil lawsuit on the same case ? For instance, the Will is in probate, we motioned the court for an accounting, to remove the Executor and to put the homeplace in the Esate where it belongs. We went to court, the judge made them put the homeplace in the Estate name, but he did not rule on the accounting other than telling her to replace the monies she took for "unforeseen estate expenses" (which is what her attorney told the judge she did with the money), the judge also attached a trust to the estate but he didn't rule on the removal of executorship. So basically, he ruled on some and hasn't ruled on other things. We got a letter from the judge after court that he had written to HER AND HER ATTORNEY, saying "she was barred by estopple on the bank accounts due to her own actions , that her accounting and not putting the homeplace in the Estate was inexcusable and he attached a trust to the Estate. Everything we motioned for was on the same motion. The Will that is probated is forged. We have documentation from a forensic examiner saying the Will is forged. WE KNEW THIS anyway. But, we finally got a copy of the ORIGINAL WILL but didn't get it until AFTER our court date. We did inform the judge about this documentation, sent him copies of it and told him everything that has transpired. He STILL has not ruled on the removal of executorship. We got a family attorney to get our daddy's bank records for us. So we do have those. And indeed, monies have been stolen. We want to settle the Estate, close it out, and be done with her. But, the motion is still sitting in probate for her removal, she put 1000.00 in the trust and they sent us a letter back after we sent them one with the settlement amount .. telling us that she has "right to survivorship" , which you cannot exercise a right to survivorship AND follow a probated will at the same time, can you? THE WILL SAYS FOR HER TO DIVIDE THE BANK ACCOUNT MONIES EQUALLY, TO SHARE AND SHARE ALIKE. She gave us 4,500.00 out of the bank accounts, this is an ADMISSION that she knew what she was suppose to do with the bank account money. But then turns around and says she has RIGHT TO SURVIVORSHIP. This does NOT make any sense. At all. Once again, we can't seem to find anyone who wants to help us get this mess straightened out, to MAKE THIS WOMAN DO WHAT SHE IS SUPPOSE TO DO. To do what is RIGHT, what our FATHER wanted. Not what SHE wants. She knew what she was suppose to do before daddy died. She AGREED to it and waited until he DIED to start her crap. OUR QUESTIONS ARE THIS ; Do we re-motion the PROBATE COURT to close the Estate? Do we file a CIVIL SUIT for other things,including forgery... or BOTH ???. Could someone PLEASE tell us what to do ??? And if we file a Civil Suit,what exactly do we file one for? FRAUD, FORGERY, MONIES OWED, TO CLOSE THE ESTATE, TO REMOVE HER FROM THE ESTATE? WHAT? And what about the Probate court.. what do we re-motion them for??? HELP PLEASE !!!! SSmith/Carrollton,Ga.


Asked on 7/16/11, 10:12 am

1 Answer from Attorneys
Rachel Hunter

Dear S. Smith:

First, if you have a probate litigation attorney, then direct your questions to him or her. Its not ethical for me to intervene and its also unfair both to the attorney and me for me to try to give advice and second guess the attorney when I have not seen documents and filings and don't know all the facts. If you don't have a probate litigation lawyer then get one NOW.

I don't know what you mean by right of survivorship or following the will. These are not mutually exclusive. Assets that are owned with a right of survivorship typically are land or bank accounts. That means that if 2 people (or more) own something with right of survivorship and one dies, then the survivor gets it regardless of what a will says about it as a will can only dispose of probate assets that a dead person owned. Land, when owned with a right of survivorship, is not really a probate asset as the person does not own it any more once they are dead.

If the will is forged, the judge certainly cannot do anything about it unless and until you bring what is called a caveat proceeding challenging the will that was filed. I don't know if any time limits have expired but that is why you need to stop wasting time here and get to a probate litigation lawyer NOW.

I don't know what you mean about the court "adding a trust" to the estate. A court cannot make a trust for the person after they are dead. The only way this can be done is either the will contained a trust (called a testamentary trust) or else the person created a trust while they were still alive. Sometimes, where there is wrongdoing by a person who acquired money or property, the court will impose what is called a "constructive trust" which is not a real trust at all. Basically, it is just a fiction for making the person who has the property give it to the rightful heirs.

What are you filing a civil suit for? You can sue her but you first need to get this woman removed as the personal representative. The more important question is what are you going to sue her for? You have to prove financial harm resulting from her wrongdoing. If she is directed to return funds to the estate and has reimbursed the estate for any losses and a constructive trust was imposed on other property, I am not sure what else you are going to get.

You don't re-motion the probate court. If the judge issued a final order, then you can file a motion for reconsideration or you can file an appeal if you don't like the order. If the judge's order is unclear, then file a motion for clarification. If the judge did not remove the personal representative, then is the motion still outstanding? If so, then the judge can still rule on it and you do not do anything. Again, allow the probate lawyer to review what has been done and give you advice.

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Answered on 7/16/11, 10:46 am


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