Disputes happen during probate when the person entrusted with the decedent’s estate — the personal representative — is suspected of mishandling the estate.
If you’re one of the beneficiaries, you may think the personal representative is unfit for the role or acting in their best interests.
Or worse, you may have discovered they deliberately withheld information or lied about transactions.
In any of these cases, it is best to seek assistance from an experienced probate attorney to help you settle matters professionally.
In this article, we’ll talk about the duties of a personal representative, the red flags to watch out for, and what you can do when you find yourself in this situation.
A personal representative is an individual appointed to represent and manage the estate of a deceased person.
The personal representative can be called executor or administrator, depending on the absence of the decedent’s will and how they were appointed to administer the inheritance.
As such, the personal representative of an estate has a vital role in the probate process. They are appointed to manage the estate and ensure it is settled correctly. Also, they are responsible for making decisions for the estate that can directly impact the heirs and beneficiaries.
The authority of the personal representative also comes with a fiduciary responsibility to all heirs and beneficiaries. Meaning the personal representative cannot put their interests above the interests of the estate.
Personal representative responsibilities that depend on whether a will exists:
The personal representative named on the will, called an executor, must:
The personal representative, known as an administrator, must follow the intestate laws of Georgia.
If there are estate assets that the deceased owned, probate may be necessary.
Anyone who attempts to distribute estate assets without following the correct probate process may be held personally liable.
The personal representative deed is typically called either an executor’s deed or an administrator’s deed, depending on whether the estate has an executor or an administrator as the personal representative.
It is a deed that is executed by a personal representative to properly distribute the real estate to the heirs or beneficiaries of the estate. Essentially, the deed transfers the real estate out of the estate and into the names of the heirs or beneficiaries.
Yes, in Georgia, a personal representative can also be a beneficiary.
In the situation where there is a will, the personal representative is named executor. Thus, in this case, a personal representative is the same as an executor.
Yes, in both cases, if there is a will or if the deceased didn’t leave a will, the personal representative has to be appointed by the probate court.
Some of the most common concerns we hear in our law office from new clients are the following:
In these situations, it is essential to have an idea of what property is in the estate.
Some of the most relevant questions to ask a personal representative are:
“Would you send me an inventory of the Estate?”
It is common to ask the personal representative for an informal inventory listing all estate assets.
You also want to get an idea of what the estate debts are as well.
That way, you can better understand what may be left for the family.
When looking at an inventory, it is crucial to see what property was in the estate on the date of death and what is in the estate now.
That way, you can see any changes and determine if there is anything to be concerned about.
“Would you send me your plan for the Estate?”
By having these simple pieces of information, you can better understand what the estate has and where it is headed.
We always recommend starting with a simple conversation and request for information. But if you run into challenges, you can follow the steps below.
We often recommend that the personal representative provide information and transparency to the family members interested in the estate.
That one step goes a long way toward reducing or eliminating conflict over the estate.
However, when the personal representative is nonresponsive or refuses to provide information, we often need to pursue legal remedies to obtain information about the estate.
That way, we know for sure what is going on with the estate.
The two most common ways of obtaining information from a personal representative are:
The first option for getting information from a personal representative is usually a demand for an accounting.
When we pursue this option, we ask the court to require the personal representative to file a formal accounting with the court so that the Judge and everyone interested in the estate can see it.
Once filed, that accounting can either settle questions regarding the estate or raise new questions.
Suppose the estate has been open for a long time. In that case, another option for getting information from a personal representative is to file a demand that he shows cause why the estate should not be disbursed.
Similar to the accounting, this will often result in a formal filing by the personal representative regarding the estate’s assets.
This option has an additional benefit in that it also often results in an explanation of the status and plan for the estate.
It can also result in a hearing.
Emotions run high while grieving and can lead a person to misjudge the situation. Be objective when assessing a personal representative’s actions.
Here are some signs that suggest they could be mishandling the estate:
One of the most common challenges regarding the personal representative is the need for more communication. They are constantly avoiding contact with beneficiaries and other interested parties.
To solve this, it is best to have a timeline established for when communication will occur.
For example, at the beginning of the probate process, you could decide that there will be regular status updates by phone or email once a month.
This communication helps to ensure that everyone involved in the estate remains on the same page and feels confident that things are moving forward.
Suppose an executor or administrator ignores phone calls and emails or refuses to give a status update on the estate’s progress. In that case, that can cause justifiable concern and uncertainty for the heirs and beneficiaries.
We encourage personal representatives to update beneficiaries even with an informal report to keep transparency.
The personal representative fails to provide an accounting or repeatedly ignores requests for transparency. Or refuses to provide backup documentation, such as bank accounts. They brush off requests to present proper documentation about the deceased person’s assets.
Or they are openly lying about transactions when you ask them. Withholding information can hint at possible fraudulent activity or improper action.
It is a common misconception that personal representatives are required to provide an inventory or accounting.
Sometimes, they are required to provide this information to the court, which will be a public record for the heirs and beneficiaries. If a legal personal representative is not required to provide information to the court, it can be more challenging to get the information you want about the estate property.
In such a situation, there are a few options. One of the first options is to request the information from the personal representative openly. If they still refuse to provide information, it may be time to get more aggressive.
Another option might be to file directly against the personal representative in court. The filing may request that the court demand an accounting from the personal representative.
This is a litigation option, which means it will be intensive and complex, and we strongly recommend having a probate attorney assist you.
If you are currently a representative, it is always best to keep a detailed accounting of the estate. You are much less likely to find yourself in an estate dispute if you are transparent with heirs and beneficiaries.
They put their interests ahead of the decedent’s beneficiaries (such as claiming estate assets as personal property).
When the probate court appoints a personal representative, they take an oath to do the right thing and treat everyone fairly.
Although a representative is given a lot of authority to handle the estate, the position does not permit them to do whatever they want. They still must follow the law.
If a representative takes items from the estate for their gain, this is a big red flag.
That type of behavior is often called self-dealing, which is likely a breach of the personal representative’s fiduciary duty to the estate, heirs, and beneficiaries.
So, if you see the personal representative taking estate property, you need to act.
There are options available and consequences that can be imposed upon a representative who engages in self-dealing. If you are in this situation, request a consultation with our office for additional help.
A common complaint is that the estate process is just taking too long.
Estimating how long it will take to settle an estate can be difficult. The reason is that the length of time necessary to complete the estate depends on many factors.
We have found that a simple, uncontested estate situation can take between 12 to 18 months in Georgia. If you are involved in a simple estate situation that has been open for many years without resolution, this could be a cause for concern.
Beyond the basic timeline, there are other factors to consider.
For example, is the representative actively communicating with you? Have they given you plausible reasons for why it is taking longer than expected?
If not, we may consider attempting to open the line of communication with the personal representative to get clarity. If this doesn’t work, we consider filing in court against the representative.
It is best for a personal representative to attempt to finish the estate in a timely manner and communicate with the heirs and beneficiaries.
When a representative is more transparent with others involved in the estate, it helps avoid potential disputes. Disputes will cause the estate process to take much longer.
There are more red flags we can add to this list, but these are the most common ones.
The short answer is yes. A petition can be filed with the Probate Court if there is strong enough evidence to support that the personal representative misappropriated estate assets.
What happens when a personal representative breaches their fiduciary duty? Here are the steps you can take:
By “aggressive solution,” we mean filing a petition against the personal representative in the probate court.
Try to settle matters calmly with the executor or administrator first and only consider this step as a final resort.
When you have doubts that the personal representative could be mismanaging the estate, having an experienced probate attorney in your corner can help you navigate your options to get the best possible results. You can contact our office at (770) 796-4582 to schedule a consultation.
Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
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