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How do i contest a will that has not been through probate court

Statesboro, GA |

my mothers property is being sold and the will never went to probate

power of attorney and the will were changed 2 months before she died.

Attorney Answers 3


  1. Best answer

    First, my condolences on the loss of your mother.

    Steven's right on several points. In Georgia, as in other jurisdictions, there's a procedure to get the court to intercede and force someone to produce the Will of the deceased person, if they have it.

    Steven also alluded to another question: if we're discussing real property (and not jewelry, cars, or other things like that), it's possible that your mother's death caused the ownership of the property to change to someone else. (For example, if the property is a house, and title was held as joints tenants with right of survivorship by your mother and another person, the house is now legally owned 100% by the other person.)

    Assuming that's not what has happened here and your mother owned the house in her own name alone, the question sets off some alarms. Regardless of whether a Will to be found or not, an estate should have been opened with the Probate Court in the county where your mother was living at the time of her death.

    So, the first things first: call the Court, and ask if anyone has been issued Letters of Administration and whether your mother's estate has been opened with the Court. If they say yes, contact the person who has been appointed Administrator and see if you can get some answers.

    Either way, though, this seems like a complicated situation, especially if you believe that your mother had a valid Will at the time of her death and that someone is intentionally withholding it.

    It'd be useful to at least sit down with an attorney experienced in these matters and lay out the facts that you have, so that he or she can correct any misunderstandings about the law and advise you on your best chance of ensuring your mother's wishes are met.

    If you find this answer helpful, please mark it here on AVVO as helpful. Now for the fine print: In answering you, I am attempting to communicate general legal information and am not representing you. Here on AVVO, I'm limited to the facts and details that you provide to me, and it's impossible for me to get the "big picture" that I would create based on a consultation with you. So, it is possible that my answers here, while meant to be helpful, may in some cases be incomplete or inaccurate. Accordingly, I highly recommend that you retain legal counsel rather than rely on the answers here. I'd be happy to assist you further, so please feel free to contact me using the contact information listed above. Any information in this communication is for discussion purposes only, and is not offered as legal advice. You have no right to rely on the information contained in this communication and no attorney-client relationship is formed. Finally, nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein.


  2. There are a few outstanding GA attorneys here on avvo so I will defer more specifically to them, however, having said that...most states allow for an action to compel the production of a will if there is one and it has not been produced or probated. That said, in order to sell the house (if it is owned by the deceased mother alone) someone representing her estate would have to be present to sign the deed (either an executor if there is a will or administrator if no will) or it won't happen. It is possible that the will was never found and probated and that this house is being sold by an administrator - the main issue then would be how the estate is then divided if there is a difference between what a will says/said and what the law of intestate succession say (the law that says who gets what when there is no will).

    This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/


  3. There's no way to sell a decedent's property without a probate of some sorts, unless the property was titled in a way where no probate was needed (such as joint tenancy with right of survivorship). It is possible to petition the probate court to compel production of a will. Whether you should depends on facts we don't have. Since time is critical here, see a local probate court immediately to determine what, if anything, you can or should do.

    If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

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