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