Kendrick Law Office

When having a Will prepared, there are a few common pitfalls that can be easily prevented. I’ll focus on the three most common pitfalls I see in my practice that can either invalidate your Will, or make the probate process more difficult than it needs to be. First, in order for a Will to be valid in Georgia it must be properly executed. This means the Will must be in writing, signed by the testator (the person having the Will made for themselves), and signed by two witnesses. The testator and the witnesses must be at least 14 years of age, and the testator must be of sound mind, and must make the Will freely and voluntarily. When the Will is executed, the witnesses must actually witness the testator sign the Will. A Will does not have to be notarized to be valid in Georgia, but I’ll discuss self-proving affidavits below. I’ve seen on a few occasions where someone will pay to have a Will drafted, and the drafting attorney mails the final product to their client, only for the client to never have the Will properly executed (i.e. not signing the Will, or not having it witnessed). When that happens, the Will is invalid. I also see this a lot when someone makes their own Will. Second, while a Will does not require a notary signature, it is best practice to have a self-proving affidavit included with your Will, which requires a notary public stamp and signature. A self-proving affidavit is attached to a Will and creates a rebuttable presumption that the signature and attestation requirements were met, allowing the Will to be admitted without the testimony of the witnesses to the Will. Probating a Will that does not have a self-proving affidavit creates additional, time consuming steps. A petitioner probating a Will without a self-proving affidavit must track down the witnesses to the Will and send interrogatories to those witnesses asking them to confirm that they were in fact a witness to the Will. If those witnesses cannot be located, a petitioner trying to probate the Will must obtain affidavits from people who can recognize the testator’s signature. This all slows down the probate process and makes things more complicated for your executor. Third, I have seen where testators fail to name a successor executor in their Will. A successor executor is someone a testator nominates to serve as their executor should their primary executor predecease them, refuse to serve as executor, or lose the ability to serve as executor after the Will has been probated. When a successor executor is not named in that situation, a separate petition, or a more complicated petition, must be filed with the probate court. All of these situations can be easily avoided by hiring a knowledgeable attorney to assist in the drafting of your Will. For such an important document, with such major implications in the lives of your loved ones, it is worth your time and money to make sure your Will is done correctly. If you are contemplating having a Will drafted, contact the Kendrick Law Office. I am happy to walk you through the process of creating a Will, to ensure you are asking the right questions, and to ensure you are avoiding these common pitfalls.

My answer to this question is always a resounding yes. I primarily represent landlords, but on occasion I represent tenants. The majority of tenants I represent prevail on technicalities that most do-it-yourself landlords fail to comply with. The law governing landlord and tenant matters is more complicated than most believe. Many landlords and tenants believe that magistrate court, where most dispossessory actions are heard, is an easy venue to tell their story. There is an element of truth to that, but it doesn’t mean parties can submit whatever they want into evidence. And most importantly, it doesn’t mean the parties know what the most important aspect of their case is. In most instances, landlords and tenants get stuck on irrelevant facts that do not affect the outcome of their case. For example, the majority of clients I work with come to me after losing in magistrate court. These clients often tell me that the Court did not allow them to tell their story or tender their evidence. This is usually because parties do not understand the procedural requirements of a dispossessory action. This blog post is not meant to be exhaustive, because this post would be entirely too lengthy to cover everything, but let me hit the highlights. First, there are three common situations that allow a landlord to file a dispossessory affidavit: (1) tenants at sufferance, (2) tenants holding over, and (3) failure to pay rent. A tenant at sufferance is a tenant who has no right to remain on the property (i.e. their lease has been terminated). A tenant holding over is a tenant whose lease term has expired yet they remain on the property. Failure to pay rent speaks for itself; however, this is typically the most difficult case to prosecute because there is typically more evidence to submit and because there are more defenses. There are statutory requirements required prior to filing a dispossessory affidavit. These often include notice requirements with strict timing protocols, and a demand for possession. There are numerous defenses to a dispossessory affidavit, many of which come into play when you are facing a landlord not represented by an attorney. The most effective and common defenses include payment, waiver, and improper notice or demand. When no lease agreement governs a landlord and tenant’s relationship, the tenant is a tenant-at-will, meaning the tenant is entitled to 60-days’ notice of termination. After the notice expires, a demand for possession must be made prior to filing the dispossessory affidavit (although, it is not always required). Employing an attorney to represent you in a dispossessory action typically starts well before a dispossessory affidavit is filed. It begins with notice and strategy. Many times the pre-lawsuit stage for a landlord involves creating a strategy that closes any doors a tenant might try to walk through as a way of defending their case. For a tenant, analysis and strategy is the first step, and also discussing defenses, counterclaims, and their rights (or lack thereof). At Kendrick Law Office, my goal is to make this difficult process as easy as possible for my clients. I am confident I can help you in any landlord-tenant matter you are facing. Whether it be drafting proper notices, filing dispossessory affidavits or answers, or reviewing lease agreements, I can help you with any landlord-tenant matter you might face. I often assist clients with the appeal process, which is a common occurrence from magistrate court dispossessory judgments. Another way Kendrick Law Office can help you is by sharing information about the setout process, and the timing of writs of fifi and writs of possession. Call, text, email, or complete the contact form on my website to get in touch with me today about your landlord-tenant questions or needs.