Episode 85 - Probate Myths and How to Avoid Probate Nightmares with Probate Attorney Erik Broel
Had a great show with Erik Broel from the Georgia Probate Law Group to discuss probate myths and how to avoid probate nightmares. There are many common misconceptions about wills and what happens to someone’s estate when someone dies. Erik’s firm handles probate litigation and they have seen first-hand what happens when someone does not properly set up their will. If you have family that depend on you or loved ones that you do not want to burden at your death, then you will really want to tune into this show.
Leh Meriwether: Todd, I know this may surprise you, but I'm excited.
Todd Orston: I'm actually not surprised at all, but your excitement is ... Well, it's catching. I'm somewhat excited as well, because I think what we're gonna talk about today, it's something that we don't talk about often. It's not something that we directly handle, but a lot of what we do ties closely into some of these things. Actually, I'm sorry, our firm now does handle some of these things, but what we're gonna talk about today is not just what to do, I mean very non-specific, what not to do, but also what can happen if you do it wrong.
Leh Meriwether: Right.
Todd Orston: We're gonna try, and hopefully throughout this show, gives some tips and let people know what can happen if they do it wrong, again I still haven't said what it is, and hopefully at the end of this show, you're gonna walk away a lot more educated.
Leh Meriwether: Yes, welcome every. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp radio on The New Talk 106.7. Here, you'll learn about divorce, family law, tips on how to save your marriage if it's in a middle of a crisis, and from time to time, even tips on how to take your marriage to the next level. If you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com, but today, we're-
Todd Orston: What is it? Tell us.
Leh Meriwether: Probate law.
Todd Orston: That's the crowd going wild. Now, all right.
Leh Meriwether: You know, I've died, now what? No, in all seriousness. Whenever we're dealing with relationships, because that's what we do in divorce, you have situations where someone's counting on you, whether it's a current spouse, or you've got children or other family members, it's important to take care of your estate, because if you don't, there could be problems and probate court.
Leh Meriwether: With us today is Erik Broel, who is the CEO and founder of Georgia Probate Law Group. Erik, I'm gonna just touch on your stuff, because gosh, I would take 30 minutes talking about all the things that you have done, but his law firm, which he had founded in 2009, has won in 2016, 2017, one of the Law Firm 500 awards, which just means that his law firm is one of the fastest 500 growing law firms in the country. He's received a 10 rating in AVO. He has won the Georgia Legal Elite in 2016 and 2017. He has also been found to be a super lawyer by Thomson Reuters, and he's been rated by Martindale Hubbell as a company, the highest rating possible, an AV rating, which these are amazing things, and there's more, but then that would take up precious air time. You can find out more about Erik at georgiaprobatelawgroup.com. Is that right Erik?
Erik Broel: Yeah, thank Leh, I appreciate it. Yeah, that's absolutely right.
Leh Meriwether: Thanks so much for coming on the show, because I know very little about probate law, and that's all you do.
Erik Broel: Yeah, that's right. We focus exclusively on helping families after they've had a loved one pass away, and what's really interesting about doing that, is it gives us a unique perspective into things that other attorneys or firms deal with, because we see all the ways that it goes wrong when the planning's not done right on the front end, even though we don't do any planning ourselves.
Leh Meriwether: Yeah, and I know you've got an interesting story. You've got ... Do you mind sharing the why behind why you formed the Georgia Probate Law Group?
Erik Broel: Yeah, absolutely. My first experience in probate happened when I was in college. I had an uncle pass away, and he left behind an aunt that I was pretty close to growing up. I went up there for this thing called an estate sale, and when I arrived, I found my aunt being pushed around in a wheelchair in her front yard. There was people everywhere. There were people going in and out of her house. Inside of her house, everything had little price tags on it, because it was all being sold off, because it was an estate sale. We also knew that the house was gonna be sold off that day, and so I walk into this with a, "What can we do? How can we stop this?" She had an attorney there and I went and I asked this attorney, "Hey, what can we do?" He kind of brushed me off a little bit and just said, "Well, somebody died, somebody passed away, we gotta sell their stuff." Technically a legally correct answer, but not the way you handle it with a family that's just experienced a loss.
Erik Broel: I ask him a bunch of questions, and the family asked a bunch of questions, and we come to find out that there wasn't a lot we could do at that point, however one way we could save the house was by the family buying the house back from the estate. What we learned, we didn't know, was the family could buy it at a discount because of my aunt's interest in the estate. I watched this whole thing occur, and I watched what happened with my aunt. It really left a mark on me and made me start to wonder, is there a better way that this can be done? Is there a better way that this can be handled for families, and is there any kind of proactive approach that could have been handled with the estate? I'm not even talking about he should have had a will, because he should have, but beyond that.
Erik Broel: That kind of led me through law school, and then after graduating law school, I founded the firm that we have today. That's our mission, is to help folks that have experienced the loss with making the probate process a little bit easier. When there are disputes, because in this case there were disputes, to work through those with the family and to do the best we can to help them in their time of need.
Leh Meriwether: I know, I had a close friend who had somebody in their family pass away and I referred them to you. They had nothing but glowing praises to say for your firm.
Erik Broel: Yeah, appreciate it.
Todd Orston: Very quickly, I just want to clarify one point. Whether you have a will or not, that doesn't have a lot to do with whether or not you might find yourself in probate court at some point, dealing with issues, right?
Erik Broel: Yeah, that's absolutely right. I do a lot of speaking, both to lawyers and to non-lawyer audiences, and that's a very, very common misconception. It's a very, very common myth. There's an idea out there that, hey I have a will. I don't have to worry about this whole court thing, and that's just not true. Now, it does change the process. It'll change the way that the process works, and I think having a will's a more beneficial way to go through it, but you still go through a process in court.
Leh Meriwether: Let's sort of explain, what is probate? Let's just explain that, that term real quick.
Erik Broel: Yeah.
Leh Meriwether: If we keep throwing it around, people are like, "What is probate?"
Erik Broel: Yeah.
Leh Meriwether: Kinda like when we say tort law, people are like, "What is tort law?" Then you have to explain, oh that's when you get hurt or get in a car wreck. What is probate?
Erik Broel: Yeah, so great question. Probate is just the process, if you want to get legally technically correct, probate means to prove a will. It's the idea that you've presented a will to the judge, because another common misconception is, "Well, I found a will. I found my name under executor. I'm just gonna go handle this thing." That's not quite true. You gotta slow down a little bit, and we have to file the will with the court with a petition, what's called a petition, asking the court to approve that will as the official Last Will and Testament. Once that's done, that process is what probate means. The way we use probate in every day speaking, is it means to settle the estate. To settle the affairs, and so what we're talking about is the deceased has been laid to rest, and now what they've left is, we have to work on handling the property and the items that they've left behind, and that's what probate is, is how do we settle that in an organized orderly fashion?
Leh Meriwether: Yeah, a few years ago, I was in court, and this is what sort of gave rise when we were talking one day. I'm like, "You've got to come on the show". I saw a case where, we didn't handle the case, but I was in court and thee was an emergency hearing. What happened was the wife quickclaimed her interest in the property, but did not make it coincide with him removing her name from the mortgage. He died in a car wreck. He was only 40, dies in a car wreck, and the estate wasn't paying the mortgage, and the mortgage company's coming after her. Well, she can't sell the house, because her name wasn't on the house anymore, so she's stuck and she had to file.
Leh Meriwether: I don't know how much money she spent paying her lawyer, but she had to hire a lawyer, file an emergency hearing to get some sort of order finding the, basically she was in superior court, I'm not sure that was the right process, and maybe you can correct them. Basically, she got an order from the judge holding the estate in contempt that they had to pay the mortgage, or something like that. I don't remember the full outcome. It just hit me that, gosh if this settlement agreement had been done right, she wouldn't be there. That's why I was thinking this is great to come on, let's talk about the probate process, sort of dispel the myths out there, and even talk about some of the cautionary tales that you've seen, because all you all do is litigate this stuff, right?
Erik Broel: Yeah, we do a lot of litigation, so it's kind of interesting. You get a litigator's perspective on how things go wrong. It's almost as if you were going to get a contract done, you have attorneys that write the contract, then you have attorneys that litigate the contract after the fact. Those litigators know every which way a contract can go wrong. It's the same sort of thing here.
Leh Meriwether: You all don't actually do the wills themselves?
Erik Broel: No, we don't write them ourselves at all.
Leh Meriwether: You just litigate them.
Erik Broel: We're kind of dealt the hand we get, and we make the best of it, right?
Leh Meriwether: You can tell the rest of us that you shouldn't have written it this way.
Erik Broel: Well, all wills are perfect, so I mean, you know.
Leh Meriwether: [crosstalk 00:09:56] wills are perfect, yeah.
Erik Broel: We'll still need your help. Our clients will still need.
Leh Meriwether: Well, yeah if they're not the ones that died.
Erik Broel: Right. I thought that was sort of unspoken.
Leh Meriwether: Unless they've come back to life and it's a zombie apocalypse.
Erik Broel: That's a different show.
Leh Meriwether: That's our Halloween special.
Todd Orston: That's right.
Leh Meriwether: All right, so up next, I know there's so much more to cover Erik, so probably, I'm looking forward to hearing you explain will or no will? What happens when there's no will? Why it's so important to get a will. What's the difference between an heir and a beneficiary? What's the difference between the executor and administrator? Gosh, I'm getting confused just asking these questions, and I'm looking forward to hearing your war stories and the cautionary tales from being in court. Definitely you want to stay tuned, because we're gonna get into a lot more. I know you plan on explaining the different phases of every estate of how to deal with stuff and things that, we'll probably finish up this show with those things that you need to be thinking about in your settlement agreement and/or in your will, after you get, your divorce is finished.
Leh Meriwether: Welcome back everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp radio on The New Talk 106.7 if you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com. Today, we've got Erik Broel in the studio with us, and what we're talking about is probate law ... No, just kidding. Actually it's really exciting. I didn't even know how exciting it could be until I started talking to Erik, but I knew this is an important topic, because I've seen in court situations where things weren't taken care of properly, either in a divorce settlement, or in a will. We've already learned today that just because you have a will, doesn't mean you avoid the probate process. Probate is, what did you say? It's proving a will? Is that the technical term?
Erik Broel: yeah, the technical term is to prove that a will is actually the Last Will and Testament of the deceased, but the way we always use it, is this idea of settling the affairs or settling the estate.
Leh Meriwether: That's why I knew this was important. I mean, not only if you're dealing with a divorce situation. What you have is great stuff, but I think that everyone needs to be listening to this.
Erik Broel: Well, the litigation most people think about, they think about criminal litigation, or even divorce and family law litigation. It's what you read about, it's what you watch on TV. You hear the stories. Probate litigation isn't something you really think about, but when you think about it, it affects everybody at some point, right? At some point, it's going to affect your family. Divorce litigation maybe not. Criminal law, hopefully now, but probate litigation, absolutely. It's just a matter of what have you done to prepare yourself, and hopefully avoid the pitfalls that could make that a really ugly experience.
Leh Meriwether: Last time I checked, there are things you can do to avoid a divorce. There aren't things you can do to avoid dying.
Erik Broel: Once again, that's another show. I hear there's some supplements, but whatever. That would be a different guest.
Todd Orston: Exactly.
Leh Meriwether: What is it? Nanotech [inaudible 00:13:25].
Todd Orston: Come on, let's go.
Leh Meriwether: All right, let's start off with what happens when there's no will? When someone dies without a will? What goes on? How do you deal with that?
Erik Broel: Yeah, that's a great question. Let's look in broad terms. You've got this whole estate administration process. That's the process of settling the affairs. Whether there's a will or there's no will, we're gonna go through this process.
Leh Meriwether: Okay.
Erik Broel: Parts of the process are gonna change a little bit, and the outcome may change a little bit based upon whether or not there's a will. Another misconception is a lot of folks don't completely understand what the job of a will is, and what I find more often than not is folks think a will does a lot more than what it actually does. A will really has three basic jobs that it needs to do. Number one, it'll allow you to determine who is going to get your things when you pass away. That could be as simple as, I give one half to each of my two children, or you could, I mean we've seen wills where it goes on for several pages. If I want the spoons to go to this person, and I want the knives to go to that person. That's one job of a will.
Erik Broel: The second job of a will is to nominate the person who's going to manage your estate once you're gone. We call that person an executor, and that person will be responsible for carrying out your wishes that are in the will, and following the law to settle the estate. The third job of a will that a lot of folks don't think of, but is really important if you have minor kids is you can nominate a guardian of your children, and this is the kind of stuff people don't want to think about, but if you and your spouse, if both of the natural parents go down on the same plane crash, what's gonna happen to your kids? Who's gonna take care of them?
Erik Broel: You have the ability in a will to identify a person that will then take care of your kids and from our perspective, from the legal perspective, what that does is it makes it very easy for us to run to court with your will, get grandma, grandpa, aunt or uncle appointed as a guardian of your kids, which then keeps the state from coming in and prevents the kids being taken into state custody while we figure this whole thing out. It's real important.
Leh Meriwether: You know, I actually had a member of my wife's family, that happened. Her sister had died, and I think there was a problem with the will, or she didn't have a will. I can't remember off the top of my head, but the state came in to take the kids, and the next thing you know her other sister was fighting to get custody of the kids.
Erik Broel: Absolutely.
Leh Meriwether: Yeah, so if things had been done a little bit better, it sounds like there would have been a lot of drama avoided.
Erik Broel: Yeah, absolutely.
Leh Meriwether: Okay, so what's the difference between an executor and administrator?
Erik Broel: An executor and administrator, nowadays they mean, they perform the same role. When there's a will, we call the person an executor. When there's no will, we call the person an administrator that manages the estate. Historically, there was some differences between these terms, but nowadays, I can make, with the appropriate signatures from the family, I can make an administrator look just like an executor and I can make an executor look just like an administrator. The key is that's the person who's gonna be in charge of managing the estate.
Erik Broel: There's another common urban myth here that I want to hit on, and that's this idea, and I've heard families say this in the office, where, "Okay we voted to appoint my sister as the administrator, and we got her appointed, so now what we're gonna do is, she wants to sell the house. We're deciding whether we're gonna sell the house or keep the house, and we're all gonna take a vote on that, and that's how we're gonna make that decision." That's not true. Once you've appointed an executor or administrator, they get all the decision-making authority. There are some things that during an estate, while it's going on, there's lots of things an executor or administrator will have the power to decide. Making sure we select the right one is important, because the entire family could at that point vote not to sell the house, but if that executor or that administrator says, "You know what? I think we need to sell it. It's in the best interest of the estate", it's gonna get sold.
Leh Meriwether: Wow, okay so important to know. Huh, so not only do they have the execution power, they have the decision-making power.
Erik Broel: Yeah, in a lot of things. They've got a lot of discretion.
Leh Meriwether: What's the difference between an heir and a beneficiary?
Erik Broel: Yeah, another good question. This goes back to whether you have a will or not, and is a term difference, but it's an important one. A beneficiary is someone who would inherit things under the terms of a will. An heir is someone who would inherit under state law if you don't have a will. That leads to a really common question. It's easy to figure out who the beneficiaries are, we just gotta read the will and find their names, right?
Todd Orston: Is it like one of those situations where all heirs are beneficiaries, but not all beneficiaries are heirs?
Erik Broel: No, not even that. Sometimes maybe. You know the old law school answer that they teach us to repeat over and over at the [inaudible 00:18:02].
Leh Meriwether: It's been a long time.
Erik Broel: Yeah, it depends. Who are an heir? Those are the folks that are going to inherit.
Todd Orston: Just by law.
Erik Broel: Just by law, if there's no will.
Leh Meriwether: Right.
Erik Broel: One common misconception in Georgia is if you have a spouse, you pass away and you're married at the time and you have kids, who inherits? A lot of folks will say the spouse. We get that over, and over, and over. In Georgia, it's not the spouse. It's the spouse and the kids. They share it, and that can create all kinds of complications. In Georgia, the way it works, is the spouse gets treated as a child, but they never get less than a third of the estate. If you have a spouse and a child, they share your estate 50/50. If you got a spouse and two kids, a third, a third, a third. Once you get beyond two kids, the math gets a little wonky and we gotta figure it out, but the spouse gets a third and those kids will split the two thirds equally.
Leh Meriwether: Okay.
Erik Broel: Now, what does that do, and this is where it gets tough. Let's say the accounts were set up where they're all in his name. I'm gonna say he, because we tend to die first, actuarily and all that kind of stuff. The wife is left and she has two children, but he had some accounts in his name. Well, now the family, and he let's say he had an income that was helping the family pay the bills. Now at the time that that spouse needs the money that they've saved, if it's in his name, she now has to split that with the kids. Once the minor kids get involved, we get into things like conservatorships, which are managed by the court and you can't get access to it, and so at the time the family needs those funds the most, they're not available. That's one of the big challenges.
Leh Meriwether: There's things you can do about that?
Erik Broel: Absolutely. 100%, there's things that can be done, and one of them is to make sure that the way the accounts are set up between the spouses, with the understanding you can do a beneficiary designation, or a transfer on death, a pay on death. You can also have a will that leaves everything to your spouse, and you can fix that. You can fix anything in state law with who the heirs are, just by having a will and identifying someone else.
Todd Orston: You can exclude an heir. In other words, let's say wife, two children survive the dying spouse. You can say basically my spouse will get 100% of everything?
Erik Broel: Absolutely.
Todd Orston: Oh okay.
Erik Broel: Absolutely. You can also, believe it or, disinherit a spouse in Georgia and say my spouse gets nothing now. There's this thing we'll talk about called Year's Support, so you can't really because the spouse is gonna have a spousal support claim to some part of that estate, but yeah, Georgia allows you to disinherit anyone you want for any reason, and contrary to another urban myth, you don't have to leave them five dollars, you don't have to leave them one dollar, you can just say I don't what them to have any part of my estate.
Leh Meriwether: Now, do you have to formally say that, or you just say my beneficiaries are X, Y and Z, and you don't have to formally say, but my son over here gets nothing.
Erik Broel: You can do it either way. Either way. Your way works just as well.
Leh Meriwether: Okay. All right, good to know. Make good notes there.
Todd Orston: Yeah, I have a lot of questions on that, because let's say an estate is millions of dollars.
Erik Broel: Yeah.
Leh Meriwether: Okay.
Todd Orston: You're saying two parties can be married for 30 years. The man, let's say, passes away and in his will he said, "I don't want my wife to have anything. It's gonna go all to our kids." You're saying that what she can do is sue for support?
Erik Broel: Yeah, but it's spousal support. Let's make it more interesting, kind of bring it closer to home with clients you may have worked with. Let's say its, he passes away. He leaves everything to his kids from his first marriage, leaves nothing to the new spouse, or the other way around. We've seen it both ways where he leaves everything to the new spouse, leaves nothing to the kids. In the situation where nothing is left to the spouse, there's this thing called Year's Support, and the Year's Support allows the spouse to make a claim against the state, and she'll still inherit some part of that estate. The reason why it's called Year's Support, is the amount she's entitled to is calculated based on one year of the standard of living that the couple enjoyed together, and what if that standard of living was lost as a result of the death?
Leh Meriwether: Wait, wait, wait.
Todd Orston: Just to build on that-
Leh Meriwether: We can't inherit more time Todd, so up next-
Todd Orston: I was so into it, I'm like ah ...
Leh Meriwether: Up next, we're gonna finish this conversation, and we're gonna learn a little bit more about the phases of every estate that goes through the probate process ... Welcome back everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp radio on The New Talk 106.7 if you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com.
Leh Meriwether: Well, I want to get right back to, I interrupted you, you were about to ask Erik a question. We've got Erik Broel ... I almost did it. We have Erik Broel in the studio with us. He is the CEO and founder of the Georgia Probate Law Group, and we've been learning all about probate law. We focus on divorce law and Todd just had this massive revelation because in divorce law things are equitably divided, but in probate law, that doesn't necessarily happen.
Todd Orston: Yeah, to steal your line. I just got pretty excited here about what we're talking about. I threw a little bit of a tantrum during the break that we had to go to break, but yeah you're right, and I brought this up during the break. That in divorce law, you're married, let's say in this situation we're talking about, the hypothetical parties are married for 30 years and all the money, let's say it's a five million estate. All of the money in the estate was earned during the marriage. Well, obviously ... Not obviously, but in divorce world, it all constitutes marital assets that are subject to division, but obviously if one party passes away, divorce law gets thrown out the window, so what I'm hearing is that in that situation, that the party who has died can actually, basically take steps in their will to carve the spouse out of ownership of a lion's share of the estate.
Erik Broel: Yeah, so let's break that down a little bit, because this is a complicated topic, and I want to go through it step by step. A couple of basic ideas first. In our world, in probate world, when someone passes away, one of the first things we have to do is we have to figure out what was his, what was hers, and what was theirs? What was ours? The will can only control things that the deceased owned personally. One of the first things we do when we-
Todd Orston: When you say personally? Sorry for ... We're talking about only in his her or her name?
Erik Broel: Only in his name. Like a house titled only in one party's name, or a bank account only in one party's name.
Todd Orston: Right, okay.
Erik Broel: Anything that's ours or is joint, that under normal circumstances is gonna pass to the other spouse. The other joint owner.
Todd Orston: That's like automatic.
Erik Broel: Automatic, yeah. If there's a bank account, both names are on the bank account, it automatically goes over to the spouse that is surviving.
Leh Meriwether: That doesn't go into the estate for division?
Erik Broel: Correct.
Leh Meriwether: Okay.
Todd Orston: Logically it makes sense, because you can't give away something that that person also owns.
Erik Broel: Right, there's some other parts of that. When we talk about the estate, if the deceased had creditors or had bills that need to be paid, these assets that are transferring automatically, what I would call non-probate assets, they're not subject to creditor claims either. There's a little give and take here. It can used negatively, it can be used positively, depending on how you look at it. We first look to see what are the probate assets, which are the assets that are gonna go through the probate process. What are the non-probate assets. I'll give you some examples, because the basic way to start is to say everything is a probate asset, unless there's an exception.
Erik Broel: What are some of my exceptions? Well, jointly titled bank accounts we talked about is one. If there are life insurance policies with beneficiary designations, retirement accounts with beneficiary designations. Often times a house that is jointly titled. We have to have a whole other show to talk about how you can title houses in all these different ways, but if it's joint with rights to survivorship, then that will pass automatically to the surviving spouse.
Leh Meriwether: Can I pause you? When you say a retirement account with a beneficiary, so we've got a 401(k), and when you have a 401(k), you should be listing who receives that 401(k) at your death, right? Is that what we're talking about?
Erik Broel: Absolutely.
Todd Orston: In other words, you've already assigned it.
Erik Broel: Absolutely.
Todd Orston: You've already assigned your beneficiary?
Erik Broel: Yeah.
Leh Meriwether: If on a 401(k) you've listed your new spouse as the beneficiary, that new spouse gets it, doesn't go into the probate court at all, so that ...
Erik Broel: Yeah.
Leh Meriwether: Okay.
Erik Broel: Yeah, that right, and you know what? Let me give you one more Leh. Let's say, oops, you forget to update it after the divorce and you leave your old spouse on there, it all goes to the old spouse-
Leh Meriwether: Ooh [crosstalk 00:27:13].
Erik Broel: There's not a tremendous amount we can do about that.
Todd Orston: We tell our clients all the time that's why, and I'm so glad you brought it up that way. That's why we tell our clients all the time that upon a divorce, you must revisit this issue. If you don't have a will or never had a will, have a will. If you had a will, you need to review that will, because I think probably 100% of the time, you're gonna need to revise that will because the people you named as beneficiaries in the old will, you'll want to change that post divorce.
Leh Meriwether: What does Georgia law say about an existing will and you get a divorce?
Erik Broel: Yeah, so if you got a will and you get a divorce, if your spouse, your now ex-spouse if in the will, we basically take a sharpie and we strike their name out wherever we find it in the will. It's just as if they weren't there.
Leh Meriwether: Okay.
Erik Broel: Anything else in the will is still going to stand and it'll be valid.
Leh Meriwether: Okay.
Todd Orston: Okay.
Leh Meriwether: I'm sorry I sidetracked you. I just wanted to make sure we were clear on that, because I saw a good point that people should know. All right, so we were talking about exceptions to the probate process.
Erik Broel: Yeah, let me add one thing to this last will discussion we had, because I think it's a good point to add it.
Todd Orston: Yeah, please.
Erik Broel: The real key is when you get remarried. If you get remarried and you have not updated your will, or your will does not say specifically, and I gotta get technical. This will is made in contemplation of a future marriage, which a lot of them don't even say that. When you get remarried, that will is basically void. Parts of it are going to be voided. Sometimes the whole thing, sometimes not the whole thing. It's gonna depend on your family situation and who the other heirs are, but effectively, that new spouse is going to get crammed into your will and will inherit under the terms of that will. Now, you can make a new will after that and say whatever you want, but a lot of folks don't know that, and so it's a surprise sometimes when a client will come in and they have this will and they think it all goes to the kids of the first marriage. Then they got married a second time after the will was created, and we have to say, "Well, no actually. A good portion of this estate is gonna go to that new spouse."
Leh Meriwether: Okay, make sure I understand this. You've got a will and it says spouse in it, and it doesn't put the person's name. It just says spouse. You get a divorce. The person doesn't die, they get remarried, but at the time they're remarried if they were to execute or put the will through the probate process, if they died during the second marriage, the new spouse basically substitutes. They take over that [crosstalk 00:29:40].
Erik Broel: Yeah, not exactly. Here's what would happen. Let me give you an illustration. Husband and wife have two kids. They divorce. Husband makes a will saying I leave everything to my two kids.
Leh Meriwether: Okay, so this is post divorce?
Erik Broel: Yeah, post divorce. Husband then gets remarried. Doesn't even think about his will. Doesn't even enter his mind, just gets remarried. Then he passes away a couple years later. New wife is not mentioned in that will, only the kids.
Todd Orston: Right.
Erik Broel: New wife is gonna be able to step in and say, "This will is gonna get altered as a matter of law. I now am entitled to what I would get as if there were no will, what we call intestate, or a not will situation.
Todd Orston: Oh.
Leh Meriwether: Okay.
Erik Broel: New wife now can step in and say, "Well, I'm gonna get a third of this", and these two kids, they're gonna split the other two third, because she wasn't mentioned in the will and the will didn't say it was made in contemplation of him getting remarried at some point in the future.
Leh Meriwether: Ah, okay.
Todd Orston: Let me build on that just for a second. Let's say you have that will. It doesn't mention the new wife. Let's say you get married on January 1st. January 2nd, if you went into your attorney's office, you prepared the will and said, "I want the exact same will that was prepared and I executed before I got married, I want to sign another copy of that. It doesn't mention my new wife, but it was executed after I married my new wife." Does it carry any different weight? Do you know what I'm saying?
Erik Broel: Yeah, I do know what you're saying and yeah, it's a funny example, but yeah, that's how it works. If you go in the day after the marriage and you sign a brand new will and it says, "I leave everything to my two kids."
Todd Orston: It's assumed to have been contemplated that there is that new spouse.
Erik Broel: Yeah, absolutely.
Todd Orston: Ah, fascinating.
Leh Meriwether: All right, let's ... We've probably thrown you way off. I don't even remember what the exceptions, all of them were.
Todd Orston: Oh yeah. We were talking about probate property right?
Erik Broel: Yeah, this whole idea that all property is probate property, unless there's an exception. Our exceptions are a beneficiary account, a retirement account that has been a beneficiary designation, life insurance, or joint property that would go to another spouse. What Todd had asked initially, was you were asking me about what happens with this really big estate, and is it possible to disinherit your spouse? The answer is yes. You could, if all of the property was in his name only, and in fact this is what happened in my aunt's situation. All of this stuff was in my uncle's name. Very kind of traditional set up. My aunt didn't technically legally own anything, meaning her name was not on title to anything. He had a couple of kids from a prior marriage and that is what wound up forcing all of this to an estate sale.
Erik Broel: When we talk about could there have been better planning done in the process? We have this idea in Georgia called Year's Support, so that spouse could then make a claim against the estate, even though she's left out of it, to say I should be supported in some way, and in Georgia the way that we measure that is we take their standard of living for a year, and that's the measure of what she should get. If she got life insurance or had other income or something, there's some math we do and it gets deducted out what not, but that's the general idea.
Todd Orston: It could still be a fraction of what that spouse would have gotten had a proper will been prepared, that contemplated that really everything should go-
Erik Broel: Absolutely.
Todd Orston: In that situation, if it's a $5 Million estate, but their lifestyle was $5,000 per month, then she might be entitled to a $60,000 amount out of 5 Million.
Erik Broel: Yeah, I'm gonna add one thing to this. You're absolutely correct. I'm gonna add one thing. The law in Year's Support goes on after it presents this formula, and it says if no one objects, you get whatever you asked for. When dealing with creditors of an estate where they could consume a large portion of the estate, these are some of the legal maneuvers that we can engage in to get that surviving spouse a much larger portion of the estate. The Year's Support idea doesn't just work as against other family members. We can use it to great advantage for the surviving spouse if there's a large number of creditors.
Leh Meriwether: Up next, we're gonna learn a little bit more about this process ... You know Todd, I love having you as a cohost, but there's sometimes I love it more when we have more people come on the show.
Todd Orston: I'm offended? I'm trying to ... The rest of this segment, I'm gonna be breaking down that comment, but thank you?
Leh Meriwether: It was meant to compliment Erik Broel-
Todd Orston: Oh Got it.
Leh Meriwether: ... for coming on the show.
Todd Orston: By putting me down. Yeah, all right. Well Erik, welcome.
Erik Broel: That's an interesting comment.
Todd Orston: By the way, I'd be a little be a little more blunt. I'm sorry happy you're here, it finally made this show interesting. Yeah, all right.
Leh Meriwether: Welcome back everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp radio on The New Talk 106.7. If you want to learn more about us, you can always call or visit us online, atlantadivorceteam.com. With us today is Erik Broel, we have been learning all about probate law. I thought I knew a little bit. I apparently maybe know a little bit? Like, I think I know less than a little bit. Now I know a lot more.
Todd Orston: Yeah, I know a lot more and like, I think we were saying Erik during the break, like family law, it's not complex, but it's complicated. There's a lot to it, and if you don't take certain steps to protect yourself, bad things can happen.
Erik Broel: Yeah, absolutely. Absolutely.
Leh Meriwether: You spend a lot of money on attorney's fees.
Erik Broel: That's also true.
Leh Meriwether: Yeah, you want to get it done right the first time. Absolutely.
Todd Orston: Exactly. All right, so you know what? We've been talking about all kinds of stuff, learning a lot of particulars, but you had said at the very beginning one of the myths is that just because you have a will doesn't mean you avoid probate, in fact, the probate is all about proving the will, that's sort of the classical interpretation, or not interpretation, definition.
Erik Broel: Yeah.
Todd Orston: Let's talk about common disputes. What do you see as some of the more common disputes.
Erik Broel: Oh, the fun stuff.
Todd Orston: The fun stuff. Yes.
Erik Broel: Yeah, so there's a lot of different ways families can wind up fighting with each other in an estate situation. There's three that we see over, and over, and over again. The first one is when there's someone in the family believes the will is a fraud. That it's a fake will, that it's a fraudulent will. A lot of times this occurs when the will was created as the now deceased person was on their deathbed. [crosstalk 00:36:22]
Todd Orston: Would that be like the Anna Nicole situation?
Erik Broel: Yeah. Yeah absolutely, you know you're going in the right direction.
Todd Orston: He was 142 years old and suddenly.
Erik Broel: Yeah absolutely. She got a keen interest in him.
Todd Orston: Keen interest.
Erik Broel: What happens in these kind of situations, what you see happening is typically you've got someone in the family, they weren't super close to the deceased before they became very ill. While they're in the hospital or in hospice, they have a new best friend. After the person passes away and the family looks at the will, lo and behold, the new best friend is the executor, the sole beneficiary. They get a large portion of the estate. The family gets up in arms. They feel like it's wrong, and that's when they wind up in our office. That's a big key dispute we see a lot.
Leh Meriwether: Wow, so how hard is that to prove that it was fake, [crosstalk 00:37:10]
Erik Broel: Oh [crosstalk 00:37:10].
Leh Meriwether: ... or fraudulent? Yeah.
Todd Orston: Yeah, well it's not fake. It's a real will, but what you're saying is that there was some fraudulent, what's the word I'm looking for? Like influence.
Erik Broel: Yeah, the argument we would use a lot is what's called an undue influence. We're gonna want to say, "Hey, the influence this person had over making this will, was beyond what's reasonable, beyond what's [crosstalk 00:37:32]-
Todd Orston: At a time when they were weak.
Erik Broel: At a time when they arrived.
Todd Orston: When they were weak.
Erik Broel: Yeah, absolutely. Effectively, what you're saying is, hey this will that got created? It wasn't really that person's intentions, our deceased intentions. It was this other person's intention, and that's what got written down.
Todd Orston: Do you have to show some kind of mental infirmity? I mean do you have to show that the person didn't have the mental ability to ... I'm putting those in contract terms, right? Really, it's not about that. It's just hey old or sick or whatever, and then this person just preyed upon that person at a time when they were just weak.
Erik Broel: Yeah, there is one where you fight over what we would call capacity, or mental infirmity. In Georgia, that is one heck of an uphill battle. Will we throw it out there in a legal document or pleading? Sure, but the one we really would rather hang our hat on is undue influence. There's no easy way to disprove a will, but that's certainly an easier road to go than trying to say they didn't have capacity to make the will.
Todd Orston: What about, I know we are limited on time. What about another common dispute?
Erik Broel: Yeah, so another one is a dispute or a fight about who should manage the estate. This could be the person that's identified as the executor in the will, some other family members don't think they're gonna do a good job, or if there is no will, it could be the person has put themselves up to be the administrator of the estate, but there's certain members of the family, or brother, or sister, or someone who doesn't think they're gonna do a good job. You know, often the classic tale we hear is, "Well, they want to be the executor of dad's estate, but you see when mom died, a bunch of money went missing and they were the executor of that estate, so we don't think they're gonna do such a good job this time around either.
Erik Broel: That would be one where we're having challenges over control. Common misconception here, a lot of folks think you can't challenge the executor, or a lot of times in a will, there will be a no contest clause that says if you challenge the will you're out. You can still challenge the person that is to be the executor if we believe they're not gonna do a good job or they're unfit.
Leh Meriwether: You can challenge the executor to have them removed and not have that, what is it? No contest clause?
Erik Broel: [crosstalk 00:39:43] no contest clause.
Leh Meriwether: It won't apply?
Erik Broel: It takes you out of the will, exactly. Yeah, exactly.
Leh Meriwether: Ah. That's good to know.
Erik Broel: You gotta be careful how you do it. Like anything in the law, right? You gotta be careful, but yeah, it can be done. Then the last type of dispute we see often is a lack of information, and it's a suspicion one. These first two disputes, they typically happen right when the estate is getting started. This last one takes a little while to build up and typically what it is, is you have a scenario where a client comes in and they say, "You know, my brother was gonna be the executor. I signed all the appropriate paperwork. Thought he was gonna do a good job. It's been six months. It's been a year. I haven't heard anything." I asked questions. I sent an email. I sent a text message, phone call, carrier pigeon, smoke signal, I get nothing back. It's like a black hole.
Erik Broel: Now, I'm beginning to get suspicious because if everything was above board and done correctly, of course, why wouldn't he communicate back with me? That launches an investigation. There's a whole host of things we can do in those sorts of situations to demand records, to get records from the estate, even if the will says you don't have to provide records, we can still get records. Then if the records don't look good, we can as the executor be removed. We can impose sanctions as a whole host of nastiness that can go on beyond that time, but there are solutions.
Leh Meriwether: That's good to know. What kind of sanctions can be against the executor?
Erik Broel: Yeah, so an executor can be removed from their position. They're entitled to compensation. We can have their compensation denied, and if their actions are particularly bad, we can ask the court to impose damages on them to make the estate whole, and even damages beyond the harm they did to the estate, what we would call punitive damages to punish them for their bad behavior.
Leh Meriwether: There's actually punitive damages in probate law, or is that the term you've given it?
Erik Broel: I don't know the court uses that term, but it works exactly the same way.
Leh Meriwether: Gotcha.
Erik Broel: The court has the authority to punish an executor-
Todd Orston: It's not compensatory. It is 100% a punishment tool.
Erik Broel: Yes, for bad behavior.
Leh Meriwether: Ah, very interesting.
Erik Broel: As well as, if it's really bad, attorney's fees for the prevailing side, which is another punishment, making them pay for the lawyers that wound up [crosstalk 00:41:53].
Todd Orston: Having them removed.
Erik Broel: Yeah.
Leh Meriwether: Which could be a lot of money sometimes.
Erik Broel: Yeah.
Leh Meriwether: All right, so you've got a will and somebody writes it, they think they're clear in the instructions, and next thing you know, you got brother and sister fighting out in court about what the real intention of the will was. Is there anything that someone can do, because they did a will, is there anything, something else that someone can do to help try to prevent that?
Erik Broel: Yeah, absolutely. This is a great practical tip. I'm really happy you brought this up Leh, because I talk to folks about this all the time. Totally non-legal. Outside the legal system entirely. One of the number one ways you can prevent that type of dispute is to have a meeting with the family. What you want to do is, let's say mom's the one passing away, or when mom makes the will, mom needs to sit down with her kids and say, "This is what I want." Sometimes, it's a really hard conversation to have, but the emotional weight and the moral weight of that conversation is gonna carry way further than anything we could legally do. If those kids really care about their mother, it'll stop disputes in their tracks.
Leh Meriwether: It's proactive, even though it's outside the will, it's just that conversation with your kids that, "Hey look. This is what I mean by this." It may be an opportunity for them to ask questions, why did you do this? That practical non-legal step could help avoid a fight later on.
Erik Broel: Absolutely.
Todd Orston: I could see that being difficult, I mean just to be fair, someone who is very sick, maybe on their deathbed. Calling everybody in to perhaps even carve one or more people out of the will, that might be a difficult conversation, but I understand practically speaking that it's a great step.
Erik Broel: Yeah, and I'm not saying carve everybody out. This only works when the kids truly care about their mother and each other. Maybe if mom's made some decisions in the will that she wants to explain to the kids, what often happens in disputes is brother thinks one thing, sister thinks another. Mom can clarify that.
Leh Meriwether: Yeah, before she, you know.
Todd Orston: That's a great point.
Leh Meriwether: Without a séance.
Erik Broel: Right.
Leh Meriwether: You know, I've had so much fun with you coming on today. Thanks so much for coming on this show.
Erik Broel: Yeah, thanks you guys for having me.
Leh Meriwether: I don't think we got to even a fraction of what we wanted to get to.
Todd Orston: No, I think we're gonna have to say what we have said a few times, "You're gonna have to come back now." You unfortunately have no choice. It's in the contract. You don't remember signing that do you?
Erik Broel: Yeah, exactly. Exactly.
Leh Meriwether: Yeah, we can probate it if you want.
Erik Broel: Yeah.
Leh Meriwether: Hey, if people want to reach out to you, maybe they've got a loved one that's going through a problem right now, what's the best way for them to find you?
Erik Broel: Yeah, they can find us online at georgiaprobatelawgroup.com.
Leh Meriwether: Okay great. All your information's up there, like how they can call you and everything?
Erik Broel: Yeah. Yeah, absolutely.
Leh Meriwether: Awesome, well thanks again for coming on the show. That about wraps up today's show and I really appreciate you coming on. I know I've said that multiple times, because this has just been so much fun and I've learned a lot. I've got to go back and update my will. Hey, if you want to read more about us, you can always find more information about us online at atlantadivorceteam.com.
Speaker 4: This audio program does not establish an attorney-client relationship with Merriwether & Tharp.