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Probate, Guardianships, etc.

Marshall Bandy, P.C. is a law office concerned about the fairness and well-being of the local community, both individuals and businesses. This general law practice has handled a wide variety of cases in the fields of domestic matters, estate planning, wills, trusts, contracts, probating estates, personal injury, incorporation of small business, real estate, adoption, bankruptcy, business law and criminal defense.

ATTORNEY BIO

What is Probate?

Probate is the practice of law in Probate Court. It is probating wills, administering estates, guradianships, estate litigation, and traffic court litigation.

Probate comes from a latin word of similiar spelling, probatus, which means "to prove something". When you probate a will you are proving the will.

Administering an estate happens when there is no will. An administrator must be appointed by the Probate Court and that administrator must pay the deceased bills and distribute the remaing property according to a set of rules established by law called "descent and distribution". Descent and distribution means determining who are the heirs and how property is to be distributed once heirship is determined.

The Probate courts are also charged with the responsibility of awarding Guardianship. Awarding Guardianship is generally making an adult who is not the natural parent responsible for the education and upkeep of a minor child. It can also mean guardianship of an adult person who is incapable of making adult decisions because of a mental or physical disability.

Estate litigation is when there is a dispute over a deceased person's property. Litigation over the terms or validity of a will is estate litigation.

In most of the smaller counties of Georgia the Probate Court is also the traffic court. Traffic tickets are disposed of in Probate Court. It is possible to appeal traffic cases to Superior Court but most are disposed of in the Probate Court.

Below is a portion of the case of Swanson v Swanson in the Georgia Supreme Court. Marshall was the lead council in overturning the decision of the Superior Court Judge "Bo Woods" in 1999. The case involved the largest estate litigation in the history of Catoosa County.

Supreme Court of Georgia.

SWANSON
v.
SWANSON et al.

No. S98A1615.
March 19, 1999.
Reconsideration Denied April 1, 1999.

Wife of remainder beneficiary that had predeceased life beneficiary brought action seeking declaration of her rights under the trust. The Superior Court, Catoosa County, Jon B. Wood, J., granted summary judgment against wife. Wife appealed. The Supreme Court, Fletcher, P.J., held that: (1) remainder interest was vested, and (2) no condition subsequent occurred prior to the termination of the life estate, so as to defease the vested remainder; abrogating, Lemmons v. Lawson.

Reversed.

Sears, J., dissented and filed opinion, in which Benham, C.J., and Hines, J., joined.

To distinguish between vested remainders and contingent remainders, a court must determine whether at the time the instrument takes effect there is a person who in his own right, or as a part of his estate, would take all of this property if the life estate ended now; if there is such a person, then the remainder is vested subject to partial or complete defeasance, but if no such person is identifiable, then the remainder is subject to a condition precedent and is a contingent remainder.

In conclusion, we hold that Bennie Swanson's one-ninth interest in the trusts passes to his wife, his sole heir and beneficiary under his will because (1) his remainder was vested; (2) no condition subsequent occurred prior to the termination of the life estate; (3) there is no language in the will that plainly manifests a contrary intent; and (4) this **826 construction is supported by case law and the applicable common law principles.

Judgment reversed.

Marshall M. Bandy Jr, PC
670 Lafayette Street, Ringgold Ga, 30736
Phone (706) 935-2201 Fax (706) 965-8980

Probate, Guardianships, etc.

SWANSON v. SWANSON et al.

SWANSON
v.
SWANSON et al.