Relevant Provisions of the Georgia Probate Code (2008).

 

Current through the 2006 Legislative Session

OCGA § 53-7-1. General Powers And Duties Of Personal Representative; Additional Powers.

(a) The duties and powers of the personal representative commence upon qualification. Such powers relate back to give acts performed by the personal representative prior to qualification that are beneficial to the estate the same effect as those acts performed after qualification. The personal representative may ratify and accept on behalf of the estate acts that are done by others that would have been proper acts for the personal representative. A personal representative is a fiduciary who, in addition to the specific duties imposed by law, is under a general duty to settle the estate as expeditiously and with as little sacrifice of value as is reasonable under all of the circumstances. The personal representative shall use the authority and powers conferred by law, by the terms of any will under which the personal representative is acting, by any order of court in proceedings to which the personal representative is a party, and by the rules generally applicable to fiduciaries to act in the best interests of all persons who are interested in the estate and with due regard for their respective rights.

(b) As part of the petition for letters testamentary or letters of administration or by separate petition, the beneficiaries of a testate estate or the heirs of an intestate estate may, by unanimous consent, authorize but not require the probate court to grant to the personal representative any of the powers contained in Code Section 53-12-232. With respect to any beneficiary or heir who is not sui juris, the consent may be given by the guardian. The personal representative of a deceased beneficiary or heir is authorized to consent on behalf of that beneficiary or heir. The grant of powers may only be ordered after publication of a citation and without any objection being filed. The citation shall be sufficient if it states generally that the petition requests that powers contained in Code Section 53-12-232 be granted.

 

OCGA § 53-7-2. Administration Of Entire Estate; Distribution Of Residuum.

The personal representative shall be entitled to possess and administer the entire estate. If, after payment of debts and satisfaction of testamentary gifts, there are assets not given under the will, such assets shall be distributed to the heirs of the decedent as if the decedent had died intestate.

 

OCGA § 53-7-3. Powers And Immunities Of Administrator With Will Annexed.

An administrator with the will annexed shall have all rights, powers, privileges, exemptions, and immunities of the executor, including the dispensation by the testator of the necessity of making inventory and returns.

 

OCGA § 53-7-4. Powers Of Temporary Administrators Pending Appointment Of Personal Representative And Executors Pending Litigation Of Caveats To Wills.

Temporary administrators, pending the appointment of a personal representative, and executors, pending litigation of caveats to wills, are authorized to carry out existing contracts of the decedent, carry on the business of the decedent, and do such acts as are necessary for the protection and preservation of the estate provided proper orders are secured from the probate court after due notice to all parties in interest.

 

OCGA § 53-7-5. Powers, Duties, And Liabilities If More Than One Personal Representative; Safe Deposit Boxes Or Receptacles.

(a) If more than one personal representative is qualified and unless the will provides otherwise:

(1) The personal representatives must act by their unanimous action; provided, however, that while a personal representative is unable to act because of inaccessibility, illness, or other incapacity, or when a vacancy occurs for any other reason, the remaining personal representatives may act as if they were the only personal representatives if necessary to administer the estate; and

(2) The personal representatives may delegate in writing to one or more of them the authority to act for all of them; provided, however, that all the personal representatives remain liable for the actions of the personal representative who is authorized to act.

(b) If more than one personal representative is qualified and unless the will provides otherwise, a personal representative is liable for a breach committed by another personal representative:

(1) By participating in a breach of fiduciary duty committed by the other personal representative;

(2) By approving, knowingly acquiescing in, or concealing a breach of fiduciary duty committed by the other personal representative;

(3) By negligently enabling the other personal representative to commit a breach of fiduciary duty; or

(4) By neglecting to take reasonable steps to compel the other personal representative to redress a breach of fiduciary duty in a case where the personal representative knows or reasonably should have known of the breach of trust.

(c) When safe deposit boxes or receptacles are leased or rented to fiduciaries, including executors, administrators, guardians, trustees, custodians, receivers, and the like, the fiduciary or fiduciaries, as lessee or renter, may authorize the entering of the box or receptacle by one or fewer than all of them or by any other person without the presence or consent of the fiduciary or fiduciaries. Upon receipt of the written authorization, the bank or lessor may without liability authorize access to the box or receptacle in accordance with such authorization. Upon cancellation of the authorization, the bank or lessor may require the presence of all lessees or renters for access.

 

OCGA § 53-7-6. Power To Borrow Money, Make And Fulfill Contracts, Provide Legal Counsel, Continue Decedent's Business, And Perform Other Acts.

Except as otherwise provided in the will, a personal representative is authorized:

(1) To borrow money and to bind the estate by the execution of a promissory note for money borrowed and to pledge any or all the property of the estate for the payment of such a promissory note by mortgage, trust deed, deed to secure debt, or other security instrument, for the purpose of paying any gift, estate, inheritance, income, sales, or ad valorem taxes due the United States, the state, or any municipality or county of the state which constitute a claim or demand against the estate; provided, however, that a personal representative who desires to borrow money shall file a petition with the probate court, setting forth the facts and specifying the amount to be borrowed, the purpose for which the same shall be used, the rate of interest to be paid, the property to be pledged as security and the period of time over which the loan is to be repaid and, upon notice and hearing of the petition, an order granting leave to borrow the money and encumber the estate shall be entered and such order shall be binding, final, and conclusive as to all interested parties;

(2) To make contracts for labor or service for the benefit of the estate upon such terms as the personal representative deems best and all such contracts made in good faith shall be a charge upon and bind the estate whenever such contracts are approved by the probate court;

(3) To fulfill, as far as possible, the executory contracts and comply with the executed contracts of the decedent, including contracts for the sale of land or bonds to make title to land, and shall have a corresponding right to demand the same of parties contracted with; provided, however, that if the personal skill of the decedent entered into the consideration of the contract and the decedent's death renders execution impossible, the contract, though entire, shall be considered divisible and closed at the decedent's death and any partial execution by the decedent shall authorize and require a corresponding compliance by the other contracting party;

(4) To provide competent legal counsel for the estate according to the needs of the estate and, in such cases, either the personal representative or the attorney employed may, by petition to the probate court duly served on the other, obtain a judgment fixing the attorney's fees and expenses;

(5) To continue the business of the decedent for the 12 months following qualification of the personal representative, after which the personal representative may petition for permission to continue the business under such terms and conditions as the probate court may specify; and

(6) To petition the probate court for permission to perform such other acts as may be in the best interests of the estate.

 

OCGA § 53-7-7. Disposition Of Income Received During Administration.

Except as otherwise provided in the will, income received by an executor during the period of administration from property that is used to pay debts, taxes, expenses of administration, general testamentary gifts, and other expenses chargeable to corpus shall be paid to the income beneficiaries of the residuum of the estate; provided, however, that nothing contained in this Code section shall alter or repeal Code Section 53-4-60.

 

OCGA § 53-7-8. Support And Education Of Minor Heirs And Beneficiaries Without Guardians.

Whenever a personal representative has paid all the debts of the decedent and all claims against the estate, and property due minor heirs or beneficiaries for whom no one applies to be guardian is left in the personal representative's hands, the personal representative may, under the direction of the probate court, apply so much of the minor's share of the decedent's estate as may be necessary for support and education as guardians are allowed by law to do.

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Article 2. ACTIONS AGAINST PERSONAL REPRESENTATIVES

Current through the 2006 Legislative Session

OCGA § 53-7-10. Allowable Defenses; Generally.

(a) For purposes of this article, the term "personal representative" includes temporary administrators.

(b) When an action is brought against a personal representative in that person's representative capacity, the personal representative may make the following defenses:

(1) That person does not occupy the position of personal representative, as alleged;

(2) That no assets have come into the hands of the personal representative;

(3) That all assets coming into the hands of the personal representative have been fully administered;

(4) That all assets coming into the hands of the personal representative have been fully administered except those necessary to satisfy debts of a greater priority;

(5) That the personal representative has fully administered the assets that came into the personal representative's hands; or

(6) That, pending the action, the letters testamentary or of administration have been revoked and the administration committed to another to whom all the assets that came into the personal representative's hands have been delivered.

 

OCGA § 53-7-11. Allowable Defenses; Action Originating In Lifetime Of Decedent.

When the cause of action originated in the lifetime of the decedent, a personal representative may make any defense or pleading which the decedent could have made if alive.

 

OCGA § 53-7-12. Survival Of Action.

An action against joint personal representatives shall not abate by the death of one but shall proceed against the survivor or survivors.

 

OCGA § 53-7-13. Service Of Process.

In all cases where there are two or more personal representatives and one or more of them removes beyond the limits of this state, service of any writ or process upon those remaining in the state shall be as effectual and complete, for all purposes whatever, as though service had been made upon all of the personal representatives.

 

OCGA § 53-7-14. Action Against Removed Personal Administrator.

(a) When letters testamentary or letters of administration are revoked, no action by or against the removed personal representative shall abate. The newly appointed personal representative may be made a party plaintiff or defendant in place of the removed personal representative.

(b) The revocation of letters of administration shall not abate any action pending for or against the personal representative, but the newly appointed personal representative shall be made a party in proper cases as in the death of a party.

 

OCGA § 53-7-15. Applicability Of Provisions Relating To Sureties On Guardians' Bonds.

The provisions of law governing the situation in which the surety on a guardian's bond dies, becomes insolvent, removes beyond the limits of this state, from other cause becomes insufficient, or desires to be relieved as surety shall be applicable to sureties on personal representatives' bonds.

 

OCGA § 53-7-16. Joint And Several Liability Of Personal Representative And Sureties.

The personal representative and sureties shall be held and deemed joint and several obligors and may be subjected jointly and severally to liability in the same action. When a personal representative removes beyond the limits of this state, dies and leaves an unrepresented estate, or is in such a position that an attachment may be issued as against a debtor, any party in interest or any person having demands against that personal representative in the personal representative's representative capacity may institute an action against the sureties or any one or more of them upon the bond of the personal representative in the first instance, without first obtaining a judgment against the personal representative in that person's representative capacity. No prior judgment establishing the liability of the personal representative or a devastavit by the personal representative shall be necessary before an action is brought against the sureties on the bond.

 

OCGA § 53-7-17. Liability On Common Bond Of Two Or More Personal Representatives.

If two or more personal representatives unite in a common bond, all the sureties shall be bound for the acts of each personal representative and the personal representatives themselves shall be mutual sureties for each other's conduct.

 

OCGA § 53-7-18. Liability Of Sureties On Bond Of Removed Personal Representative.

In all cases of removal of a personal representative for any cause, the sureties on that personal representative's bond shall be liable for the personal representative's acts in connection with the estate up to the time of settlement with another personal representative or the distributees of the estate.

 

OCGA § 53-7-19. Action On Bond For Failure To Settle And Account With Heir Or Beneficiary.

When any personal representative fails to settle and account with any heir or beneficiary of the estate, the heir or beneficiary may bring an action on the bond of the personal representative in the first instance and may recover judgment against the principal and the principal's sureties without first bringing an action against the personal representative in that person's representative capacity.

 

OCGA § 53-7-20. Action On Bond Upon Liability Of Decedent And Return Of Execution Marked Nulla Bona.

Upon the rendition of a judgment against a personal representative upon any liability of the decedent and a return of writ of execution marked nulla bona, the plaintiff may at once bring an action on the bond of the personal representative and may recover judgment against the principal and the sureties in the same action. If the principal has removed beyond the limits of this state or has died and has no legal representative, the plaintiff may bring an action against the sureties on the bond alone, without joining the principal.

 

OCGA § 53-7-21. Against What Property Judgement Levied.

In an action against a personal representative in that person's representative capacity, the judgment shall generally be de bonis testatoris. However, when the personal representative unsuccessfully makes any of the defenses described in Code Section 53-7-10 or a release, the judgment shall be that the plaintiff recover both the debt and costs, to be first levied on the property of the decedent, if found, and if such property is not found, then to be levied on the property of the defendant personal representative.

 

OCGA § 53-7-22. Levy Upon Property; Entering Of Judgment And Issuance Of Execution.

(a) When a judgment has been obtained against the principal and surety or sureties on the bond of a personal representative, guardian, or other fiduciary, a levy may be made upon any property of any defendant in fi. fa.

(b) The probate court shall be authorized to enter a judgment and to issue a writ of execution against the principal and surety or sureties on the bond of a personal representative, guardian, or other fiduciary and shall be further authorized to grant judgment and execution in favor of the surety or sureties against the principal upon payment of the judgment by the surety or sureties.

 

OCGA § 53-7-23. Property Upon Which Execution Levied.

In all cases of judgments recovered against a personal representative and the sureties of a personal representative, the execution shall first be levied on the property of the sureties, and no levy shall be made on the property of the principal until there is a return of nulla bona as to the sureties.

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Inventory

Claims Against or in Favor of the Estate

Discharge

Settlement and

Simultaneous Death Omitted

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