Legal Question in Wills and Trusts in Georgia

I was wondering if I actually contested my mother's will because in her will she asked to be cremated and I, as her executor, gave her a Christian burial and placed her body with my and my wife's family of grave plots. In her will she stated that if anyone contest the will, they would be stricken from inheriting anything. Thus far, I have one sister and one brother who have contested the will in writing and I have no reason to contest her will's contents, but I'm afraid I may have contested by not following through with her wish to be cremated. Can anyone help me with this issue?


Asked on 11/22/16, 10:13 am

2 Answers from Attorneys

Glen Ashman Ashman Law Office also dba Glen Ashman Attorney

First of all, it is extremely foolish, risky and dangerous to start a probate or serve as executor without a lawyer. Get one!

Second, as a general rule burial instructions in wills are not binding, but the rest of your post suggests you have other issues where you are dangerously over your head.

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Answered on 11/22/16, 10:29 am

You ask a variety of issues. First, I agree with Attorney Ashman. You need a lawyer. Second, instructions about burial/funerals do not belong in a will. They ought to be placed in a separate document. Even if they are, that does not mean they have to be followed. I think it was in grosslypoor taste that you would refuse to honor your mother's wishes and do what you want instead. Hardly very Christian of you. However, regardless of what one thinks of your refusal to carry out your mother's request, this doe not amount to a will caveat.

A will contest is only filed if one disputes the disposition of the decedent's property. Your mother has what is called an "in terrorem" clause. They are valid and enforceable, but only up to a point. They are designed to preclude frivolous will caveats. If you have legitimate grounds for contesting a will, then the clause may not stand because the will would be invalid. if the will is tossed out, then the property will pass via intestacy, meaning you would have to share your mother's net estate with your other siblings.

I am not sure why the siblings are contesting the will and whether they would have more to gain by bringing a caveat. If the will leaves you the bulk of the property, you might want to try to support the will. If you think the will was invalid, why don't you all just agree to enter into a family settlement agreement? Will caveats are expensive. The only ones who "win" are the lawyers as they get the money. You are going to need a probate lawyer.

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Answered on 11/23/16, 9:33 pm


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