The Atlanta Lawyer January/February 2015 - Page 10

From the Bench A View from the Probate Bench By The Hon. Kelli Wolk Chief Judge, Probate Court of Cobb County Welcome to Probate Court: • In Georgia, we’re courts of record (I know, SHOCKING, right!) Don’t send your law school intern to present your client’s case. • We’re not the Superior Court. Please don’t cite to their rules when filing conflicts or motions. • We follow the Civil Practice Act. • We use funny words like: “Caveat” instead of “Objection.” Don’t panic, they’re just words. But we give you forms for many of our proceedings to make it easier. • Some of our cases move much quicker than cases in other courts. Keep this in mind when setting appointments with clients who want to object in a probate case. Many of our deadlines are ten (yep, 1-0) days from service, not the 30 you’re used to. • Dismissing a Caveat to a Will or a Year’s Support “without prejudice” might not let you re-file. • There are two kinds of Probate Courts: traditional and expanded (or Article VI) jurisdiction courts. Basically, expanded jurisdiction courts have lawyer judges in counties of more than 90,000 people, jury trial jurisdiction, and our appeals go directly to the Court of Appeals or Supreme Court (depending on the subject matter, which sometimes confuses even them). • Expanded jurisdiction courts have Rules in Appendix A to the Uniform Probate Court Rules that, among other things, lengthen discovery. If you are filing in an expanded jurisdiction court, make sure to look back there for lots of helpful hints. Now, let’s talk about some common issues in Probate Court practice: First, remember that we are courts of limited jurisdiction (both expanded and traditional jurisdiction courts). In other words, if you can’t find a case or a code section saying that we can hear something, we probably can’t. My advice: in limited jurisdiction court, start all of your pleadings with “Comes now [petitioner], pursuant to O.C.G.A. §[whatever].” Not only does this make you look super smart, confident, and generally more appealing to a judge with 150 annual returns on her desk to review and sign; it assures you, opposing counsel, and the Court that you are in the right place. I’m not 10 THE ATLANTA LAWYER January/February 2015 a fan of ancient flowery language but getting the “pursuant to” language right up front is a huge bonus. Next, know who your client is. Sounds simple; I assure you, it isn’t. We see attorneys who represent “The Estate” or “the family” in estate matters. What does that mean? Whose calls will you take? Who will you advise when “your clients” no longer agree about what Item VII of the Will really means? Who pays your bill? Who does your engagement letter say you represent, etc? If you represent “the Estate,” can you refuse to take calls from all 17 beneficiaries of the Will? What about the 73 creditors of the Estate? What about heirs who will be cut out of a Will that has yet to be probated? Defining your client is harder in probate cases, but much more important. We see guardianship cases with an attorney who is 1) the Petitioner (who also purports to represent #2, 3, & 4); 2) the Proposed Ward; 3) his wife; and 4) children. Guardianship proceedings are adversarial. You cannot be the Petitioner, family’s counsel, and the Proposed Ward’s counsel in a guardianship case any more than you can be the Prosecutor, victim, and Defense counsel in a criminal matter. Finally, you haven’t proven your guardianship case because an incapacitated adult consents. I’m not saying no one can consent to a guardianship, but announcing at the beginning of your case “We’re here, your Honor. Everyone agrees that this is appropriate and necessary. My clients, the ward and co-petitioner, are here and you can ask whatever you want to know, otherwise I can submit a proposed Order” is not going to meet your burden of clear and convincing evidence. Believe me, people have tried. So be prepared to explain why you are coming before a particular probate court. Know who you represent in the matter. Familiarize yourself with our rules. Then, enjoy yourself: probate courts are generally kind, helpful places that are trying to get you an appropriate result that will hold up. The From the Bench column features topics related to recent case law, rulings and general legal subjects and is intended to stimulate discussion on broad legal matters relevant to members. The Official News Publication of the Atlanta Bar Association