Today, we’re going to talk about how probate disputes work in Georgia, and the five parts that are in every probate dispute.
Any estate, probate, or trust case that winds up in litigation is going to go through this five part process.
My name is Erik Broel. I’m the founder and CEO of Georgia Probate Law Group. We’re a law firm, and we focus exclusively on helping families that have experienced the loss of a loved one. We work a lot with estate and trust litigation cases.
We also help in situations where it’s more peaceful, and the main goal is to settle the estate properly and make sure that everything is done right.
Let’s jump in to our topic today.
These are the five phases of every dispute:
What are pleadings?
Pleadings are when you make a formal allegation or accusation against the other party.
In an estate situation, a pleading or an allegation examples may be:
- “I think that the will you’ve presented to the court is fraudulent or invalid, and I think that the court should overturn that will.”
- “I’m not sure what’s going on in this estate. I’ve asked for information. I’m not getting any information that I asked for or the information I’m getting is not making sense. I would like a full accounting of this estate so that I can determine whether it looks like things are going correctly or not.”
- “I know that the things that are going on in this case are not good. That the executor is not following all the duties that an executor has. I would like for that executer to be removed and I would like a different person to be put in that position that will handle the estate properly.”
Each of these are examples of allegations. That’s not an exhaustive list, however, and those are some pleadings that we often see in Georgia probate disputes and in our office.
Once the pleadings have finished, then we go to the discovery phase.
Discovery is just a fancy word for investigation, and it allows us to investigate the facts surrounding the allegations that were made.
There’s a number of tools that we can use to do that:
- We can send off written questions to the other side and require them to answer those questions.
- We can send off document requests to the other side.
- We can send off document requests to third parties and get these documents back that may have evidence in them that will help support our case.
- We can also bring folks in to a deposition where we have a party we’re going to depose and we’re able to have a court reporter there and ask them questions and make them answer those questions on the record, so that that can be used as evidence as well.
- We can go inspect property or inspect a home if it’s applicable in that particular case.
Why are we doing all this?
Because we have to produce evidence to support the allegations that we made in the pleadings phase.
If we don’t have evidence to support those allegations, then when we go in front of the court to present our case, it’s not going to go well.
The court may decide against us because the court can’t just look at allegations of what we think is going on, the court has to look at the evidence we can produce showing what’s actually going on. That’s why discovery is important.
The next phase is motions.
Motions can occur during the discovery phase. They can also occur leading up to trial. Understand that motions can move around a little bit and they happen at different phases.
So what is a motion?
A motion is any time we ask the court to do something or to take an action during a case.
- “Judge, I sent off some requests for information or documents to the other side. They are not responding to me, and they’re not giving us the documents we’ve asked for. Please make them give us the documents.” That would be a motion to compel.
- “Judge, we have done a lot of discovery. We’ve produced a lot of evidence. In fact, the evidence that we’ve been able to gather is so abundantly crystal clear that it shows that there’s no need to have a jury or trial in this case. The court can just decide right now as a matter of law, and in this case, and they can decide in my favor because the evidence we have is so clear.” That would be a motion for summary judgment.
Those are two motions that are often made in cases to give you some examples. There’s many, many other types of motions that could be made.
Trial or Hearing
The next thing that would occur is that we would move on to the trial or the hearing of the matter.
Quick note on this, throughout the case, there can be and probably will be other hearings.
I gave you an example of a couple of different types of motions.
If we filed a motion for summary judgment or we filed a motion to compel, the court will often order a hearing on those motions where we’ll go to court and we’ll be arguing about those particular items in the case.
When I say trial here or major hearing here, what I’m talking about is the trial of the case. At this trial, the court is going to hear and look at the pleadings we made at the beginning.
We’re going to present the evidence that we were able to discover in our investigation. And we’re going to be asking the court to decide in our favor on the basis of that evidence. Now, the other side is going to be doing the same thing, trying to get the court to decide in their favor based on the evidence that they’re presenting.
But at the end of this hearing, at the end of this trial, that’s going to decide all the matters in the case. And so the case will be finished once that ends.
Appeals are not used all the time.
In fact, I wouldn’t even say they’re used frequently.
However, I want to talk about them because when we talk about an appeal, it’s not what most folks think.
An appeal in our sense is when you believe that the trial court made a mistake. The Judge made a mistake of law on a ruling.
And we want to go and ask the higher court, the court of appeals or the supreme court, “Please fix the mistake that was made. Change that ruling to fix it so that it’s a correct ruling under the law.”
You don’t just get to file an appeal because you don’t like the result, and that’s what TV portrays, but that’s not an accurate portrayal. There has to be some legal mistake we can allege that was made by the court.
That’s the five parts of a dispute start to finish that every litigation case goes through.
Now I’ve got one other thing I want to talk to you about briefly. The idea of settlement.
As the case is going on, there’s often going to be settlement talks between the parties.
In fact, in Georgia, in virtually every metro county, the judge at some point is going to order a mediation.
A mediation is nothing more than a formal settlement discussion where both parties and their attorneys come together in a conference room and they talk about their issues in an effort to try to settle them, and there’s a mediator there as well.
Mediation is not binding unless the parties come to some sort of agreement and agree to make it binding.
When litigation starts, there are two paths that it can go down.
It can proceed all the way to a path of the final trial of the matter and that would be the conclusion or the end of the case, or it could end at any point before trial if the parties come to some sort of negotiated settlement or some kind of an agreement.
That agreement could be anything other the sun.
It could be one party dismisses entirely. They decide to quit fighting over it.
It could also be where the parties come to an agreement that’s some sort of a compromise between what the various allegations have been.
The sky’s the limit. We’ve seen all sorts of different types of settlements.
Those are the five parts of every dispute. If you have any questions, or you want to talk about your own situation, feel free to call our office at (770) 920-6030. We’d be happy to have a consultation with you.