Wills, Probate, Guardianship & Conservatorship

Guardianship & Conservatorship

For some members of our society, legal protection may be necessary even after they have entered adulthood.  These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, or have some other condition that prevents them from caring for themselves.  In these cases, a guardianship may be established.

Guardians and Protected Persons

There are two main types of guardianship: guardianship of the person and conservatorship of the estate or property. A guardian is typically a family member, friend or fiduciary appointed by the court.  A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property.  Additionally, a person who is prone to fraud or undue external influence may be placed under guardianship for protection. 

Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:

  • choosing a residence
  • providing informed consent to medical treatment
  • making end of life decisions
  • making property transactions
  • obtaining a driver's license
  • owning, possessing or carrying a firearm or other weapon
  • contracting or filing law suits
  • marriage
  • voting

Right to Due Process

In order to safeguard the protected person's right to due process, he or she is usually provided with notice and is entitled to attend all legal proceedings related to guardianship.  In addition, the protected person may obtain representation by an attorney, present evidence and confront and cross-examine all witnesses. 

Guardianship of the Person

Guardianship of the person grants authority over non-financial matters such as issues that impact the personal well-being of the protected person, including making important medical decisions.  The appointed guardian is normally tasked with the following responsibilities:

  • determining and maintaining residence
  • providing informed consent to and supervising medical treatment
  • consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
  • making end-of-life decisions
  • maintaining the protected person's autonomy as much as possible

Conservatorship of the Estate or Property

Conservatorship of the estate or property empowers the conservator to make important financial decisions on behalf of the protected person, including:

  • Organizing, gathering and protecting assets
  • Arranging appraisals of property
  • Safeguarding property and assets from loss, whenever possible
  • Managing income from assets
  • Making appropriate payments
  • Obtaining court approval prior to any sale of major assets

The conservator may be required to report to the court about his or her activities on an annual basis.

Many conservatorships are temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity.

Guardianship of Minors

Guardianships may also be used to protect the legal rights of a minor.  In the event that a parent is no longer able to act on behalf of his or her child, a guardian, usually a relative, is appointed.  Unlike an adoption, under a guardianship, parents may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.

A minor may be considered for legal guardianship if his or her parent cannot provide shelter, does not have steady income, suffers from an illness, or is incarcerated.  In most instances, parental approval is sought prior to any legal proceedings. 

Probate

 When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed.  If the assets of the deceased were owned through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased's assets.  The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.

The probate process for each estate is unique, but usually involves the following steps:

  • Filing of a petition with the proper probate court.
  • Notice to heirs under the will or to statutory heirs (if no will exists).
  • Petition to appoint Executor (in the case of a will) or Administrator for the estate.
  • Inventory and appraisal of estate assets by Executor/Administrator.
  • Payment of estate debt to rightful creditors.
  • Sale of estate assets.
  • Payment of estate taxes, if applicable.
  • Final distribution of assets to heirs.

FREQUENTLY ASKED QUESTIONS

What happens if someone objects to the will?

An objection to a will, also known as a “will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.

In order to contest a will, one has to have legal “standing” to raise objections.  This usually occurs when, for example, children are to receive disproportionate shares under the will, or when distribution schemes change from a prior will to a later will.  In addition to disputes over the tangible distributions, will contests can be a quarrel over the person designated to serve as Executor.

Does probate administer all property of the deceased?

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.

Certain types of assets are “non-probate assets” and do not go through probate.  These include:

  • Property in which you own title as “joint tenants with right of survivorship”.  Such property passes to the co-owners by operation of law and do not go through probate.
  • Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
  • Life insurance policies.
  • Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
  • Property owned by a living trust.  Legal title to such property passes to successor trustees without having to go through probate.

Do I get paid for serving as an Executor?

Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased’s estate.  In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate.  The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care.  It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.

How much does probate cost?  How long does it take?

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a will and the location of real property owned by the estate.  Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay.  Common expenses of an estate include Executors’ fees, attorneys’ fees, accounting fees, court fees, appraisal costs, and surety bonds.  These typically add up to 5 to 7 percent of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.


Pandora E. Palmer has an office in McDonough, Georgia and serves clients throughout all of Georgia, including: Butts, Clayton, Coweta, Fayette, Henry, Lamar, Monroe, Newton, Pike, Rockdale, Spalding, and Upson counties.



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80 Macon Street, McDonough, GA 30253
| Phone: 678-432-9958

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80 Macon Street, McDonough, GA 30253 | Phone: 678-432-9958