Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
When family discussions turn to estate matters after a loved one’s passing, you may find yourself in one of two positions.
On one hand, you may have learned that you are the named executor in the deceased’s will. You may be grappling with the weight of your new role and want to navigate your responsibilities as an executor carefully to avoid possible conflicts.
On the other hand, you may be an heir or beneficiary with uncertainties about an executor’s actions and decisions. Perhaps the probate process is already underway, and you’re wondering if they truly are fulfilling their duties.
Whether you’re stepping into the shoes of an executor or expressing concerns as an heir, this article will help you understand the executor’s role, along with its responsibilities and legal liabilities.
When a person passes away, they often leave behind a will. This document assigns someone to manage the deceased person’s estate – and that person is called the executor.
If the deceased did not leave a will, the Probate Court will designate someone — an administrator — to take on similar responsibilities as an executor.
Family members may nominate an administrator, and if their choice is unanimous, the court may also agree to assign that person to the role.
The deceased person has the say in choosing an executor. They typically name someone they believe can execute their final wishes, like their surviving spouse, a family member, or an attorney.
If the will does not exist, the Probate Court will appoint an administrator to handle the estate’s assets.
Usually, the person named executor in the will is someone the deceased considers trustworthy, responsible, and honest.
When the will identifies two people to manage the estate together, they are called co-executors.
Georgia Law expects co-executors to work together as partners. They jointly decide on all estate-related matters, from signing checks to selling estate assets, because neither person has the legal authority to decide on their own.
As you can imagine, issues often arise when they don’t agree on one particular decision; this is why we often recommend a sole executor to keep estate administration simple.
Yes. Family members or beneficiaries can contest the choice of an executor if they have reason to believe the person is unfit for the role.
Reasons could be conflicts of interest, a history of dishonesty, or the lack of ability to handle the responsibilities effectively.
Contesting the appointment of an executor can be a complex legal process, so if you find yourself in this situation, we urge you to seek legal advice to present your case effectively.
Yes. An executor may turn down the role if they feel they cannot fulfill their duties.
If they had already accepted the role but later found it challenging, they must ask the court’s permission to step down and provide a valid reason for their decision.
Once the court approves their request, they may check the will for any Successor Executors. These individuals would step in to serve as executors.
If there are no named Successor Executors, the court may appoint another person (an administrator) to handle the deceased’s estate.
If you are the executor, your core duty is to follow the deceased person’s wishes as stated in the will.
Here is a breakdown of the various responsibilities that comes with the role:
Regardless of your personal opinion, you must be fair and distribute assets based on what heirs or beneficiaries legally own.
You will identify and protect all the estate assets like bank accounts, investment accounts, personal property, vehicles, or other possessions like jewelry. You will also be responsible for opening an estate bank account to hold all the collected funds. We highly recommend keeping a detailed inventory of the estate to address any potential disputes in the future.
Once appointed, you must identify all creditors and any debts owed by the deceased. You will then run a creditor or debtor ad through the local newspaper to notify them that they may now come forward to file their claim. Once the creditors submit their claims, you will pay them according to a creditor priority system in Georgia. As a rule, you must use estate assets to settle debts before distributing what remains to heirs and beneficiaries.
While distributing assets, you must follow Georgia Law and honor the last will’s provisions. If the estate has run out of liquid assets and you still need to pay debts and taxes, you may need to sell some of the deceased’s property to cover these financial obligations.
If the court asks you to obtain a bond, create inventories, or submit annual returns, you must promptly follow these requirements.
After you have distributed the assets to heirs and beneficiaries, you may now file for discharge from your role as executor. Once the court accepts your discharge paperwork, you may receive a liability shield to protect you from any beneficiary, heir, or creditor attempting to file against you in the future.
Fulfilling these duties calls for careful attention and knowledge of legal procedures. When in doubt, seek guidance from a probate attorney.
In Georgia, the timeline for an executor to fulfill their responsibilities depends on the complexity of the estate and where they are in the probate process.
Appointing an executor alone may take anywhere from 6 weeks to 3 months. Several factors can also affect this timeline, including objections by family members and how fast involved parties submit their paperwork.
Once the executor assumes their role, they perform most of their duties during the administration phase. This period, which takes a minimum of 4 months, is where the executor identifies creditors, gathers assets, locates heirs and beneficiaries, and settles creditor claims.
Lastly, the executor distributes what remains of the assets and closes the estate through a phase known as distribution and discharge. This stage of the probate process typically lasts between 6 weeks to 3 months.
The overall timeline for an executor to complete their duties will depend on how long these phases last, and whether issues come up anywhere during the probate process.
Georgia Law typically requires the executor to file an inventory and annual returns with the probate court. This keeps the probate process transparent and accounts for all the assets in the estate.
However, there are cases where the will itself might exempt the executor from this requirement. In this situation, the executor may not need to file formal reports with the probate court.
Even when formal reports are not required, executors typically provide informal updates to the beneficiaries. Keeping everyone informed about the estate promotes a healthy relationship among family members.
When we represent executors, we often recommend offering these informal reports. Transparency builds trust and reduces suspicion. If a beneficiary asks for an update and the executor declines, it can raise doubts about their actions.
In any case, we consider it best practice to maintain an inventory and accounting of the estate. Not only does it demonstrate proper management, but it also protects the executor from possible accusations of mismanagement.
Yes, an executor typically has the authority to make decisions without consulting beneficiaries or heirs.
However, their decisions should align with the deceased’s wishes and the best interests of all parties involved.
While they can make decisions independently, keeping open communication with beneficiaries can help prevent misunderstandings and build trust.
In Georgia, the executor should follow the terms of the will and state laws when they distribute assets.
After gathering the assets and settling estate debts, the executor may take these steps:
The executor first examines the will to understand how the deceased wanted their assets to be distributed. The will may specify which beneficiaries receive particular assets or properties.
The executor should properly assess the value of the assets to accurately distribute them. Assets such as real estate, personal property, and investments must be appraised if necessary.
Some assets can be distributed “in-kind,” which means beneficiaries receive them as described in the will. For example, an heir may receive a piece of jewelry that held sentimental value to the deceased.
If the estate money is not enough to cover debts, the executor may need to sell certain assets, such as property or investments, to raise funds.
The executor provides beneficiaries with the assets they are entitled to as per the will. They may transfer ownership of properties, distribute funds from bank accounts, or transfer investment assets.
Throughout the distribution process, the executor should maintain accurate records of all distributions. This documentation serves as proof that the executor fulfilled their responsibilities.
If you are a beneficiary and you suspect the executor is mishandling the estate, it is best to seek legal guidance from an estate attorney.
Keeping communication lines open with beneficiaries helps manage expectations and minimize conflicts.
Here are ways you can keep beneficiaries informed:
Provide timely updates about important milestones, such as the status of asset distribution, creditor settlements, and any legal proceedings.
Plan periodic meetings or calls with beneficiaries to discuss the estate’s progress, answer questions, and address concerns.
Encourage beneficiaries to share their concerns with you. Answer their questions promptly and provide clear explanations to avoid suspicion.
Share copies of important documents, such as the will, inventory of assets, and any court filings that may affect beneficiaries’ interests.
By following these steps, an executor can maintain trust with beneficiaries throughout the probate process.
As an executor, you can be held personally liable in certain situations. You can best protect yourself if you understand these areas of liability:
If an executor mishandles or misappropriates estate assets, beneficiaries or creditors can hold them accountable for financial losses.
Executors must settle valid debts of the estate. Failure to pay creditors in the correct order can lead to personal liability for outstanding debts.
Executors have a fiduciary duty to act in the best interests of beneficiaries. They can breach this duty by acting in self-interest or neglecting their responsibilities.
Filing accurate tax returns for the estate is one of the duties of an executor. Neglecting tax obligations can make an executor personally liable for any penalties or taxes owed.
To protect yourself from potential legal issues, consult an experienced probate attorney. They can guide you as you fulfill your duties throughout the probate process.
We also recommend documenting all estate-related actions and maintaining open communication with beneficiaries to prevent disputes.
If you are an heir or beneficiary and you suspect that the executor is either neglecting their duties or mishandling the estate, here are steps you can take:
First, try to communicate with the executor. Often, misunderstandings clear up by discussing concerns directly. Keep in mind that the executor may be facing personal difficulties or challenges related to estate matters.
If communication does not resolve the issue, consider sending a formal demand letter. Request a detailed accounting of the estate, including assets, debts, and expenses. This step can help clarify the situation.
If the executor still refuses to cooperate, you can consider filing a petition with the Probate Court to request an accounting of the estate or even the removal of the executor. Consulting a probate attorney is best in this situation.
If the executor’s lack of action persists, and a considerable amount of time has passed, you can file a request with the probate court to appoint someone to represent the estate. The new representative can compel the executor to bring the original will to court if it hasn’t been done yet.
Being an executor is not always straightforward, and you might run into questions or situations that need legal insight.
If you need more precise information or the expertise of a probate attorney, contact our office at (770) 796-4582 to set up a consultation.
Having the right kind of support can make a world of difference as you navigate the responsibilities and challenges of being an executor.
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