Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
So, you’ve recently learned that a deceased loved one had named you an executor on their will — Now what?
Before you accept the role, you must be aware of the responsibility that goes with it, including having a thorough understanding of probate laws.
Without legal knowledge to guide your actions, you can easily be held personally liable.
We recommend having an attorney in your corner as you move through the probate process to ensure that all steps taken conform with the law.
In the meantime, we’ll cover your most common questions in this article.
When a deceased person leaves a will, the document should identify one person to act on behalf of the estate. This person is what we call the executor.
The decedent typically designates someone — their surviving spouse, a family member, a lawyer, or any person they consider qualified to fulfill their final wishes.
Should the nominated person accept the role, they will be responsible for estate administration, paying all the estate’s debts before distributing assets to the beneficiaries.
An executor’s job also includes enforcing the will legally and correctly throughout the entire probate process.
Without a will, the Probate Judge must designate another person called an administrator to take over the same responsibilities.
A designated executor may decline if they consider themselves unable to carry out their responsibilities.
If they had previously accepted the position, they must seek the court’s permission to resign while providing a reasonable justification.
Once their request is granted, the court may look to the will to verify if there are any Successor Executors who are named to serve as Executor. Those individuals will be asked to serve and if the Successor Executors are unable or unwilling to serve, then the court may nominate someone else (an administrator) to manage the deceased person’s estate.
Although the decedent’s last will already names an Executor, this person still has no legal authority to act.
The court needs to officially appoint them first before they carry out the deceased’s wishes.
One of the first steps in the probate process is to submit the decedent’s will and a formal request to let the nominated person serve. Along with these documents, they must also file a duly filled petition.
It’s best to work with a Probate attorney when filing these requirements to ensure that everything is compliant.
Once the court approves the petition and if all heirs agree to the will, the Probate Court will approve it, and the named Executor will receive an order that officially appoints them to the position.
This legal document, called Letters of Testamentary, gives the individual authority to take charge of the deceased person’s probate assets.
Unfortunately, there is no guarantee that the powers outlined in the will are sufficient to complete everything that is necessary.
Personal representatives may need to obtain expanded powers to accomplish more tasks in a shorter time, but Georgia Law won’t automatically grant these to anyone.
If you’re in this situation, there are ways to obtain expanded powers so you can expedite the process:
You will have to check if the document gives you additional authority beyond the default powers under Georgia Law.
It is common for a will to list specific actions you’re allowed to take or reference a code section from Georgia Law that contains a long list of additional powers for an executor.
Heirs must unanimously consent to give you expanded powers for the court to approve.
You will also need formal consent from all heirs to obtain expanded powers.
In both cases, the Probate Judge may honor or deny the request, but it is more favorable when everyone is on board.
In Georgia, executors work with or without pay, depending on the decedent’s will. Those who do receive compensation are paid out of the probate estate.
Some wills declare how much to pay their executor; others do not.
If the deceased person doesn’t mention any compensation in their will, then the executor will be paid per Georgia’s state law.
On the other hand, if the will explicitly states that the executor will serve without compensation, they may not receive any payment.
Although Georgia law technically allows this, it carries a HUGE risk.
If the distribution leaves the estate with insufficient assets to cover creditor claims, you, as the personal representative, and the recipients can become liable. None of you are exempt, even if you did not know about the creditor until after the distribution.
You can be obliged to pay the full claim, while the recipients can be accountable for up to the total amount they received.
If you find yourself in this position, you should determine whether the benefit outweighs the risk.
If a beneficiary feels the Executor is not transparent or communicating enough, they have a right to file against them.
If the executor is not keeping a detailed and accurate accounting of the estate, this can cause issues with all the estate stakeholders.
You may think you’re doing the right thing, but if you are paying creditors incorrectly, you can be held personally accountable for settling their claims. There is a creditor priority system in Georgia you must follow in the proper order.
Being named on the will as a personal representative does not automatically authorize a person to act as executor.
The court must appoint them first legally, or they’ll risk liability for any harm caused to the estate under the legal doctrine of executor de son tort.
An executor de son tort translates to “executor of his own wrong.”
This term refers to a person who wrongfully inter-meddles with or converts the property (assets) of an estate. Doing this in bad faith can make them accountable to the heirs for double the property’s value.
If any heir believes that the executor isn’t acting in their best interest or makes decisions outside of the decedent’s terms, they may file a legal complaint.
There are options to hold the executor accountable, and an experienced Probate lawyer can assist.
Georgia Law requires executors to file an inventory and annual returns with the probate court, but if the will explicitly exempts them, they won’t be obligated to do so.
However, it is quite common for executors to share informal reports informing beneficiaries of what is happening with the estate.
We generally encourage executors to provide these because transparency promotes good relationships, and refusing to update beneficiaries can make them suspicious.
If you are the beneficiary, you can file a petition with the probate court requesting the executor to submit a formal accounting.
Once approved, the court may require that the executor file an inventory of the estate.
Honoring the wishes of the decedent as stated in the will is their primary responsibility, but an executor’s duties also include:
1. Being fair to the beneficiariesAs an executor, you could breach your fiduciary duty if you single out a beneficiary when distributing the remaining assets.
Regardless of your judgment towards any of them, you must provide them with what they legally own.
The executor should ensure that all assets of the estate are accounted for and secured. These possessions may include bank accounts, investment accounts, real estate or other property, vehicles, jewelry, or other assets.
They will be responsible for establishing an estate bank account to hold the collected funds and should always keep a detailed inventory of the estate to address potential issues. For example, some heirs may not feel compensated reasonably or question their share of assets from the estate.
Once appointed, the executor should run a creditor or debtor ad in the local newspaper to give proper notice that the estate has opened and that creditors may come forward to file a claim.
When creditors submit their claims, the personal representative must pay them according to a creditor priority system in Georgia.
As a rule, all debts must be paid out of the assets before heirs and beneficiaries receive their portion. If you are a creditor and an executor refuses to pay you, here’s what you can do.
The executor is responsible for deciding which property to sell and which to keep. Either way, they must treat their beneficiaries equally and follow Georgia law when making decisions.
For example, if the estate has run out of liquid assets and there are still creditors to satisfy, they may have to sell personal property to pay them.
When the Probate Court demands the executor to file for a bond, prepare inventories, and prepare annual returns, they must promptly comply.
After distributing the beneficiaries’ share, the executor must attempt to be discharged from the estate.
When they submit the proper discharge paperwork, and the court accepts it, the executor may receive a liability shield to protect them from a beneficiary, heir, or creditor attempting to file against them in the future.
There can be nuances to the role of an executor that you may need to clarify, or tasks that you need to fulfill that will require an attorney’s assistance.
We suggest that you don’t do this alone.
If you need specific information from a probate attorney, please go to GPLG.com/Handbook to download a complimentary copy of our Georgia Probate Handbook or contact us at (770) 796-4582 to set up a consultation.
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