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Michael Lewis Van Cise

Michael Van Cise’s Answers

55 total

  • My mother died without a will, but she wanted everything to be equally divided by her grandchildren. Can that be done

    My mother died without a will but wanted everything to go to her grandchildren. Can my sister and I sign the estate over to them to be divided equally

    Michael’s Answer

    This communication does not create an attorney-client relationship, does not constitute legal advice, and is intended as general information only.

    When a person dies without a will in Georgia, the disposition of their estate is governed by the laws of descent and distribution (sometimes called the "intestacy laws"). Under Georgia law, if a person dies with no spouse and two children, each child takes 50%. See OCGA section 53-2-1. As Mr. Minko points out, you could accept the property from the estate then give the property to the grandchildren. However, taking such action could have negative tax results depending upon the value of your mother's estate.
    A better approach may be to have you and your sister "disclaim" your interest in your mother's estate. The effect of a disclaimer (that meets certain requirements of federal and state law) is that the property passes as if the disclaimant (i.e., the person who executes the disclaimer--in this case, you and your sister) predeceased the decedent. Under Georgia law, the share of a deceased child is distributed to the deceased child's descendants, per stirpes. See OCGA 53-2-1(c)(3). By executing a disclaimer, you can avoid any federal transfer tax which would be imposed if you (or your sister) received the money then gifted it to your children.
    Because the requirements of the disclaimer are somewhat technical (and depending upon what actions you have taken, it may not be possible to disclaim) you should likely seek the advice of a licensed Georgia attorney to assist you in the process. The time deadline for executing a disclaimer is nine months from the date of the decedent's death. If you are within nine months, you should probably discuss the matter with an attorney to see if a disclaimer is a good option.
    If you found this answer helpful, please click the "thumbs up" below.

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  • Can we probate a copy of a Will that was not filed by administrator over 30 yrs, recent death quick claimed to self & spouse?

    Will not probated,quick claim deed filed recently at death, siblings not given rightful share,trusted until death, what now? How costly and what process

    Michael’s Answer

    • Selected as best answer

    This communication does not create an attorney-client relationship and does not constitute legal advice but is general in nature and for information purposes only.

    Although I am not sure I fully understand the facts and your question, I'll attempt to respond.

    First, a will can not be probated until the testator (that is, the person who made the will) dies. If the testator died, there is no "deadline" for filing the will, but it should be filed soon after the testator's death. Georgia law requires that a person possessing a will of a person known to be deceased to at least file the will in the county where the testator was domiciled (i.e., where he/she lived and "called home").
    If you know a person has the will and refuses to file it, the Georgia probate court does have the authority to require the person to file the will. The named executor in the will is the appropriate person to file for probate, but another person could file for probate if the named executor is unwilling or unable to do so.

    If real property was deeded (whether by warranty deed or quitclaim deed) to someone during the life of the testator, the contents of the will may not matter. While it is possible to overturn a deed, it is not a simple process. In order to invalidate a deed one would need to show something like (1) forgery, (2) fraud, (3) that the grantor lacked the mental capacity to make a gift of property, or (4) duress (that is, that the grantor was forced to sign the deed under pressure or inappropriate coercion from a third party. The standard to invalidate a deed is quite high and the action would likely need to be brought in Superior court (not Probate court).

    The cost for the legal action to invalidate the deed could be several thousand dollars, possibly several tens of thousands. I would recommend examining the timing of the deed or deeds, considering the mental state and circumstances of the grantor at the time the deed was executed, then if you think the grantor may have been unduly influenced consulting with an attorney about moving forward with regard to the quitclaim deed issue.

    On the probate of the will issue, the cost of probating the estate should not be too expensive: a few hundred to a few thousand dollars of legal work and court fees covers most Georgia estate administration (assuming no estate tax return is required). The problem is, if the deed is valid, the property transferred by the deed is not a part of the estate, so probating the will won't help you recover any property which was transferred during the testator's lifetime. No matter what the person's will states, he/she can give away property during his/her lifetime in a manner different than what is set forth in the will. The contents of the will might serve as evidence that the deed was obtained in a wrongful manner, though.

    I hope you find this helpful.

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  • Benificiary vs. Heirs, whos is whos

    My father recently passed, there are five kids, one was listed as a benificiary of his 401k, other than that there is no will. is the 401k part of the estate to be divided by probate or is it the sole possession of the benificiary?

    Michael’s Answer


    Generally speaking, a validly executed beneficiary designation on a 401(k) governs the distribution of the assets in the 401(k) plan. However, 401(k) plans are subject to ERISA so there may be some protections, such as for a spouse. If your father was not married and he named just one child as the beneficiary, the 401(k) probably belongs to the child. Some exceptions to this would include (1) your dad signed the beneficiary designation under duress (2) the beneficiary designation was fraudulent or not completed property or as required by the 401(k) provider or (3) if the child named murdered your father (pursuant to the Georgia or relevant state "slayer" statute, the child probably can't benefit).

    In most cases, where a beneficiary is designated and that beneficiary is living, the retirement plan is not a part of the probate estate to be divided pursuant to the intestacy law (the governing law of distribution if the decedent had no will) or the will.

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  • I was the administrator father's estate. All was done legally but later found an unpaid debt to a mortgage company. Liable?

    My father passed away without a will. I paid all known debts and published the required notice, etc. Later I found that my father had co-signed with my brother for a mortgage. The remaining money had been distributed. Am I liable for that debt...

    Michael’s Answer


    With regard to liability, the distributees of your father's estate are likely liable for their pro-rata share. Assuming you are a distributee, then yes, you are likely liable, but not as the administrator, rather, as a beneficiary. See O.C.G.A. section 53-7-43 (1997). This, of course, assumes you had no notice of the debt and otherwise did not breach your fiduciary duty to them. If you made distributions with an awareness of the debt, you might have some personal liability in your capacity as administrator.

    Depending upon the mortgage terms, your brother and your father's estate are probably both jointly and severally liable. If your brother has not defaulted and there was no other default, the mortgage company may not be able to pursue your father's estate on the obligation. I recommend reading the mortgage agreement/security instrument to find out if a default has occurred and assess whether or not any current liability exists.

    The statute of limitations on the liability is probably at least six years. Because of your father's death, the statute of limitations which applies was probably tolled (i.e., extended) from the period of your father's death to the appointment of you as the administrator and possibly some additional time. Thus, the statute of limitations may be more like 7 years. Other circumstances might extend the statute even beyond this.

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  • How long is a probated will legal?

    if a will is not followed to the lanaguage in it how long after probate can a person have it enforced?

    Michael’s Answer


    If the Executor or administrator of a Georgia estate has breached his/her/its fiduciary duty, you may have as long as ten years or longer to file a lawsuit for breach of fiduciary duty. Even though this is a lengthy period, If you are aware of a fiduciary breach, you should seek legal counsel as soon as possible and likely file suit as soon as possible. Even though you may have a legal remedy does not always mean you will have a practical remedy (for example, if the executor is "judgment proof" meaning the executor has no assets from which to pay the damages). The time to file could be shorter or longer depending upon the nature of the wrong, when it occurred, when you (or the harmed party) knew or should have known about it, the age of the beneficiary (minority can "toll" or extend the time to file the action), and other factors. If the executor has filed a petition for discharge, the time may be much shorter and you would need to file an action quickly (or not assent to the discharge).
    Not only can you sue for damages when an Executor has breached the Executor's fiduciary duty, but if you are aware of something that the Executor is about to do is in violation of the terms of the will, you may have a cause of action to compel the Executor to follow the terms of the will to require them to follow the provisions set forth in the Will.
    I recommend that you consult an attorney who can consider the specific facts and review the statutes and case law in light of those facts. Because you do not have an unlimited time in which to file, you should do this as soon as possible. If you fail to file within the statute of limitations, you could lose your ability to sue.

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  • Two W-2s vs One W-2 – Which one pays more tax?

    A couple with two children can choose both go to work or only one goes to work. A total income is assumed $90,000 regardless of both or only one working. Which choice of work will pay more tax, one W-2, two W-2s or no difference (exactly same)?

    Michael’s Answer

    THIS ANSWER IS NOT INTENDED TO GIVE YOU SPECIFIC LEGAL OR TAX ADVICE. You should seek tax and or legal counsel to address the specifics of your situation.

    Although numerous factors go in to determining the federal income tax liability of a married couple, the brief answer to your question is that the lowest possible tax liability should be the same whether the wages of $90,000 are earned by one spouse or both. This is the case because the wages of both taxpayers are aggregated on the joint return, so it does not matter who earns the wages. $90K of wage income results in the same amount of tax whether earned $45K by each or $90K by one. Even so, I advise you to consult a tax professional about the specifics of your situation.
    Specific factors such as joint filing versus separate filing (joint filing should produce the lowest aggregate tax cost) will impact the tax due. Further, deductions such as medical expenses (if over 7.5% floor), home mortgage interest, student loan interest, and other issues may impact the tax owed. Exemptions also impact the tax (the two children, depending upon how old they are and where they live may be claimed as exemptions).
    In addition, if some of the income is not wage income the results could be different.
    Lastly, FICA (social security and medicaid) taxes should be the same in either case if the total earnings is $90K (but this may not be true at higher earning levels, where having 2 taxpayers/wage earners might result in more FICA taxes than if one earned all wages)

    CIRCULAR 230 NOTICE: To comply with the requirements imposed by the United States Treasury Department, any information regarding any US federal tax matters contained in this communication is not intended or written to be used, and cannot be used, as advice for the purpose of (1) avoiding penalties under the Internal Revenue Code, or (2) promoting, marketing or recommending to another party any transaction or matter addressed herein .

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  • Does a will in Georgia need to be probated if all assets are left to the spouse? What is cost of probating simple will?

    Assets are left to the spouse, so why probate a will?

    Michael’s Answer

    At minimum, if the person is deceased and was a resident of Georgia at the time of death, the person in possession of the will is required by law to file the will with the probate court. See my legal guide on the Avvo site here: In other words, even if probate is not required, you should likely file the will of the decedent with the probate court.

    Whether probate is required or not depends primarily on how the assets owned by the deceased spouse were titled. For example, if the spouse merely owned a joint checking account titled "with rights of survivorship" or pay on death ("POD") to the surviving spouse, no property would be in the decedent's probate estate and therefore, no probate required. Similarly, if the decedent owned a parcel of real property (such as his/her personal residence) with another person (e.g., spouse) as "joint tenants with rights of survivorship," then that real property passes pursuant to the dictates of Georgia law and the "survivorship" designation in the deed.

    If, instead, decedent owned a bank account, brokerage account, cash on his/her person, real property, or virtually any other asset individually, then probate in Georgia is likely required even if the will leaves everything to the surviving spouse. The reason for this is because property owned by the decedent, unless governed by some contractual arrangement (such as a beneficiary designation on a life insurance policy or POD designation on a financial account) or joint with survivorship titling, that property becomes a part of the estate. The probate process is the procedure by which the court "validates" the will and ensures that the will is, in fact, the decedent's last will and his/her last wishes. In sum, the mere fact that the will leaves everything to one person does not necessarily mean that the will need not be probated. Rather, the nature of the decedent's property (and how it was titled and owned) is the determining factor.

    Regarding the costs of probating a will, if you do not hire an attorney, the filing fees (in Georgia), publication of the notice to debtors and creditors, etc. in most counties will probably total between $200 and $500. The variance stems from the fact that, depending upon the contents of the will (e.g., whether inventory and returns are waived by the decedent) different filings (and associated filing fees) may be required for some estates which are not required for others.

    THIS COMMUNICATION DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. Moreover, the above is not legal advice and can not be relied upon as such. Legal advice depends upon the specific facts of the situation and the above is general in nature and for informational purposes only.

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  • What does it mean to probate a will in solemn vs common form?

    My father just passed and I'm beginning to complete some of the probate court forms online. His will states that everything is to be divided equally among me and my sister.

    Michael’s Answer

    The primary differences between common form probate and solemn form probate are (1) the notice requirements, and (2) the finality of the process.
    Common Form probate in Georgia does not require notice to anyone: not the people named in the will, not the spouse nor the children of the decedent. Common form probate leaves the will submitted to probate open to challenge for an extended period of time (minimum of four years), however.
    Solemn form probate requires notice to the "heirs" of the decedent as that term is defined in O.C.G.A. section 53-2-1 (1997). see O.C.G.A. section 53-5-22 (2008 Supp.). The actions of the executor are more protected when the will has been probated in solemn form and the will can not be contested by parties who have been given proper notice of the petition.
    In almost all cases, it is preferable to probate a will in solemn form, but some cases may warrant common form probate. The specific circumstances of the case may dictate using one method over another. In my experience, courts may ask that if you file for common form probate that you indicate when you plan to file for solemn form probate, so the courts seem to have a preference for solemn for probate.

    THIS COMMUNICATION DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP AND IS NOT, AND MAY NOT BE RELIED UPON, AS LEGAL ADVICE. Legal advice is dependent upon the specific facts and circumstances of the situation and the above is general in nature.

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  • My father passed away with four credit cards in his name only. Does my mother have to pay these back?

    He does not have an estate (no money there) and she will get some life insurance, but only enough to pay off her debt. He has a car that is worth about $1500.00 and has $15000.00 in debt over four accounts. The checking is a joint account and he...

    Michael’s Answer

    If your father was a Georgia resident at the time of his death, Georgia law likely applies. In Georgia, generally speaking, a person's estate bears the responsibility for the debts and obligations that person had in life. Unless your mother had a contractual agreement with the credit card company(ies), she has no legal responsibility for the debt. You should first confirm that the cards were not in your mom and dad's joint names. If the debt is joint, your mother is responsible for the debt. The other possible source of liability is if your mom was an authorized user on one or more of the accounts (given that she did not know about them, I assume this is not the case). Credit card agreements often make the authorized user secondarily responsible for debts incurred by them if the primary cardholder does not pay. It is also possible that the credit card company could make an equitable argument that your mom is liable (for example, he purchased something for her benefit) but the creditors are not likely to pursue such an argument.
    While your mother may not be personally liable, she also may not be able to inherit assets from your father's estate if the creditors are not paid. The joint account is likely a non-probate asset and need not be used to pay the debt. The car, however, if it was in your father's name only, should be sold and the proceeds distributed to the creditors of his estate according to the priority set forth under Georgia law. You may wish to seek legal counsel regarding how to probate the estate and pay your father's debts. You might also pursue having the county administrator serve as the executor/administrator of your father's estate.

    If it is important to your mother to keep the car, she may be able to take the car by way of year's support. Year's support is a statutory provision in Georgia that comes first in priority ahead of funeral expenses and the creditors of the estate. You may wish to engage an attorney to advise you with regard to the benefits, downsides, and prudence of filing for year's support.

    THIS COMMUNICATION DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP AND IS NOT INTENDED AND SHOULD NOT BE TREATED AS LEGAL ADVICE. Legal advice is dependent upon the specific facts and circumstances of each individual situation and the above is general in nature.

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  • Estate inventory detailed

    Fm:GA How detailed is the administrators inventory of an intestate indebted estate supposed to be? Every dish,piece of clothing, piece of silverware (none of which is valued even at market (or is it)?

    Michael’s Answer

    The statute on this topic is quite vague. Georgia law states in part, "the personal representative shall prepare an inventory of all the property of the decedent." OCGA 53-7-30. As such, the detail required on the inventory is probably in the discretion of the court. I recommend a reasonableness approach. Listing every dish separately is probably too much detail. However, listing "property of decedent - value $300,000.00" is probably too vague.

    The court should be able to provide you with a standard form for inventory for the county. In the counties where I practice, the form lists real property separate from personal property. Under the "personal property" category, bank and savings accounts are each listed separately, stocks and bonds listed separately, automobilies and life insurance also have category headings. With regard to personal property, clothing, etc. I usually show it as a group. Following this approach will likely put you on solid ground as far as the court is concerned. That is, the court is not likely to return it to you and ask you to re-do the inventory.

    The amount of detail you put in the inventory from a practical perspective, however, depends upon a number of factors. The answers to questions such as, "are the heirs/beneficiaries of the estate likely to raise questions as to my activities?", "how much debt is owed by the estate? and who are the creditors?", "how many people knew the decedent? and is he/she notable or do people have reason to search court records?" may cause the executor/administrator to be more descriptive or more vague.

    In any event, it is important to be as complete as possible and if property is discovered after the filing of the initial inventory, the administrator should file an amended inventory.

    Regarding values, fair market value at the time of death is probably the best value to use, although I'm not sure that specific valuation is required by the Georgia statute.

    In sum, meeting the minimum legal standard probably just requires reasonableness in terms of detail, but other factors may motivate the executor/administrator to provide more or less detail depending upon the sought-after goal.


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