IMG_7866As a show of solidarity with the law enforcement community, FCW will host a First Responder’s Day on Aug. 19 in appreciation of our local police officers, fire fighters, and other first responders.

Please join us at our offices in downtown Canton for an Open House from 3:30-8:30 pm for complimentary food and beverages, and to discuss your legal concerns free of charge.  Thanks for all you do to keep America safe!

FCW prevails again, this time in the Supreme Court.  On February 8, 2016, the Georgia Supreme Court unanimously denied certiorari, thus confirming our client’s victory in the Court of Appeals that we wrote about on January 6, 2016.

Original article in link below:

http://fcwlawfirm.com/great-news-for-fcw-client/  

 

KLA articleLiving through the death of a loved one is a tragic experience that most people will have to endure at some point in their lives.  Unfortunately, in many instances family members are forced to deal with stark financial realities while they are in the midst of their grieving.  The process of estate administration and handling finances after a death can present many questions and issues that are unfamiliar to the average citizen.

One of the first issues that must be confronted is “What should I do with the deceased person’s assets?”  If the deceased person (the “decedent”) took the responsible step of executing a will during his or her lifetime, the Executor must file the original copy of the will with the Probate Court of the county where the decedent lived at the time of his or her death.  In the typical un-contested will situation, the Court will then issue a document called the Letters Testamentary to the Executor giving him or her legal power to handle the decedent’s debts and assets and make all necessary transfers to carry out the will.   The Executor will then pay the estate’s debts and issue the remaining assets to the beneficiaries of the will.

Another question which must be answered is: “What assets are subject to distribution under the will?”  The assets of the decedent’s probate estate include all real estate, personal property (cars, clothing, furniture, etc.), and monetary assets that the decedent owned at the time of death.  The Executor must identify all such assets and distribute them according to the provisions of the will; however, before the Executor can make any distributions to the beneficiaries, he or she should contact potential creditors of the decedent and satisfy any legitimate debts that are subsequently claimed against the estate.

Conversely, there are some valuable assets that are not included in the decedent’s probate estate.  Life insurance benefits, 401k benefits, and other insurance or retirement benefits are governed by contract law rather than probate law, and thus they are not usually included in a probate estate.  These types of assets are beneficial to survivors because they pass directly to the named beneficiaries outside the probate process and are not usually subject to claims of the decedent’s creditors.  Therefore, it is crucial for people to ensure that they have named beneficiaries and successor beneficiaries for the accounts because if no such beneficiary is identified by the decedent prior to his or her death, then the money will be paid over to the probate estate assets and become subject to creditor(s) claims.

I recently executed a will for a young client who was facing a terminal illness.  He passed away shortly thereafter, leaving behind nearly a million dollars of medical debts and a scared, grief-stricken wife.  This unfortunate, but not entirely uncommon, situation left the wife asking a very important question: “Can I be held personally liable for the individual debts of my spouse, such as medical bills, car loans, or private student loans?”  Fortunately, Georgia is not a “community property state”, so you will not be liable for your deceased spouse’s separate debts or liabilities unless you co-signed for them.    Also, if a decedent had federal student loans, they will be completely discharged and cancelled upon death.

Families also need to be aware that Georgia law offers protection for a decedent’s surviving spouse and minor children through an optional distribution called “Year’s Support”.  Qualifying family members are entitled to petition the Court for a ‘Year’s Support’ by which they can request the court to set aside money and/or property from the decedent’s estate’s unencumbered assets for support and maintenance for a period of twelve months from the date of the decedent’s death.  The benefit of petitioning for a Year’s Support is that any Year’s Support assets will be the first priority issued out of the estate assets.  Effectively, this means that this money and property can be set aside for the family first and would be safe from any unsecured creditor’s claims against the estate.

It is important for all citizens to understand the legal process involving a death and their rights and responsibilities regarding a decedent’s assets and liabilities.  Georgia laws offer protection for surviving loved ones through Year’s Support distributions and spousal liability limitations, and these rules can be crucial to support families during such unfortunate times.  However, there can be many complexities to the general rules discussed in this article, making effective legal counsel essential for all families to properly prepare for the future and deal with a loss.

Kristyn Atkinson is an associate attorney at Flint, Connolly & Walker, LLP.   Kristyn grew up in Cherokee County, Georgia and earned her law degree at the University of Georgia School of Law.   She graduated with highest honors from the Georgia Institute of Technology with a Bachelor of Science in Business Administration.   

The following is a summary of an article entitled “The Unforgettable Death of My Forgotten Patient”, published in the Wall Street Journal in August 2015.

wsj scan

In this article published in the Wall Street Journal in August 2015, a Milwaukee physician shares his story about a patient and the circumstances surrounding her medical treatment- circumstances that could have easily been prevented with a healthcare directive.

Ms. M arrived at the hospital with a large mass in her abdomen, causing her severe pain. In order to determine Ms. M’s options, doctors needed to be able to perform a biopsy on the mass. However, Ms. M had been deemed “non-decisional”-meaning she was no longer capable of making medical treatment decisions on her own behalf.

Without any known relatives or friends to provide consent, doctors were unable to perform any medical procedure considered “invasive”. In these cases, the next possible option is to obtain legal guardianship of the patient, which is typically a complicated process that can take months. And in most cases, once the patient is considered “non-decisional”, they don’t have months left to wait to obtain a guardian.

In the case of Ms. M, her situation might have been different if she had someone advocating in her best interest. Without an advance directive regarding the medical wishes of a patient, the doctors’ hands are tied when it comes to performing invasive procedures that could potentially save their patient’s life. Declaring a medical power of attorney can help prevent such an event from occurring. At Flint, Connolly and Walker, we can assist you with estate planning so that you are prepared for the future.

Douglas H. Flint is senior partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents and assists both businesses and individuals with their legal matters.

Happy New Year!

Happy New Year from Flint, Connolly & Walker! With the new year comes new resolutions, and this year isn’t any different. If you don’t already have a will, now is the perfect time to get your affairs in order. Contact us at FCW today to schedule an appointment to have your Last Will and Testament prepared, or for any other legal needs you may have.

Great News for FCW Client!

Last month the Georgia Court of Appeals ruled in favor of FCW’s client, a Canton family who faced the condemnation of their property by the City and County governments to force the creation of a conservation area.  The Court of Appeals reversed the trial court and found that FCW’s client was entitled to damages PLUS attorney fees.

On April 12, 2012 the government filed a motion to dismiss the petition for condemnation after deciding that the condemnation of the property “was no longer necessary for public use”, and asked the trial court to reimburse the funds it had previously deposited to pay FCW’s client for the taking of its property. Our client filed a motion in opposition to the government’s motion, arguing that they were entitled to additional compensation for the temporary taking of their property.  FCW also sought attorney fees and costs of litigation.

As stated in the Takings Clause of the Fifth Amendment to the U.S. Constitution, private property “shall not be taken for public use, without just compensation.” The Supreme Court has determined many times that temporary takings such as what happened to FCW’s client are also deserving of compensation, so although the government tried to dismiss its condemnation of the property of our client, our client is still entitled to compensation for the time that the property was taken by the government.  As noted in the opinion, “private property rights are among ‘the most basic of human rights,’  and… [t]hus, governmental action that works a taking of property ‘necessarily implicates the constitutional obligation to pay just compensation,’” even when the taking is temporary.

The City and County had argued that our client did not require any compensation beyond attorney fees and costs of litigation based on the 2006 Landowner’s Bill of Rights and Private Property Act and Georgia Code § 22-1-12.  The Court of Appeals, however, sided with FCW’s argument, finding that OCGA § 22-1-12 “was enacted as part of the 2006 ‘Landowner’s Bill of Rights and Private Property Protection Act,’ which expanded property owners’ protections against condemnation rather than limiting those safeguards.”  Therefore, the Court ruled that OCGA § 22-1-12 functions to “allocate the costs imposed on the condemnor to the condemnees if the condemnor abandons a condemnation action at any point,” and “unlike most plaintiffs, ‘condemnors that abandon their actions must . . . pay the property owner’s reasonable costs and expenses actually incurred because of the condemnation proceedings, including attorney, appraisal, and engineering fees.’”

The decision is Court of Appeals Case No. A15A1280; decided: November 13, 2015.

The Court of Appeals decision was a complete victory for FCW and our client – the Court ruled that our client was entitled to both attorney fees/costs of litigation and compensation for the temporary taking of their property.

Douglas H. Flint is senior partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents and assists both businesses and individuals with their legal matters.