Executor and Administrator Responsibility and Accountability

The Georgia probate and estate administration process begins with a petition being filed with the probate court in the county where the decedent was domiciled at the time of his or her death. The probate court petition seeks to have the probate court issue "Letters of Administration" or "Letters Testamentary" that appoint an executor or administrator to begin the formal estate administration process. Once appointed, the executor or administrator of an estate has fiduciary duties which are imposed under Georgia law. The fiduciary duties imposed by Georgia law upon and executor or administrator are among the highest and most stringent imposed by Georgia law. These duties "relate back" to the executor's or administrator's acts prior to appointment by the probate court. Until commencement of the "formal" estate administration process has been ordered by the court, the executor or administrator must "protect and preserve" the assets of the estate and treat all interested "parties" to the estate with due regard to their respective rights.

The estate administration process is very time consuming and is usually very difficult. This is especially true for non-lawyers attempting to try and administer an estate without the guidance of an experienced Georgia probate attorney. Furthermore, the Georgia estate administration and probate process is usually an emotional, confusing and complicated undertaking. This is especially true since the parties to the estate administration process are often family members, relatives, and friends.

Generally, executors/administrators have many responsibilities to settle the estate which include the following:

  • Beginning the probate process by filing for Letters of Administration or Letters Testamentary.
  • Obtaining death certificates and other certified legal documents.
  • Filing the original will and other legal papers with the probate court.
  • Looking for heirs, beneficiaries and other "interested persons" and "parties" who may have an interest in the estate.
  • Filing tax returns for the person who died. This includes federal, state, and local income taxes in addition to federal and state estate taxes as necessary.
  • Publishing Notice to Debtors and Creditors.
  • Giving notice that an executor or administrator has been named or appointed.
  • Opening estate checking and savings accounts.
  • Locating documents that affect the value of the estate such as birth certificates, real estate and property deeds, federal and state income tax returns, gift tax returns, employee benefit information, marriage certificate, military discharge papers, prenuptial agreements or vehicle titles.
  • A listing of all of the estate’s assets, sometimes called an "inventory".
  • Managing the assets of the estate. This includes negotiating leases, making investments, and paying debts and final bills.
  • Keeping a written record of all income, expenses, and payments made. This is referred to as an "accounting".
  • Determining the value of all banking, savings, mutual fund, and brokerage accounts as of the date of death.
  • Locating qualified appraisers to document the current fair market value of business interests, real estate, and personal property such as jewelry, cars and clothing.
  • Making sure that buildings (houses, rental property, office buildings) owned by the decedent are insured. The executor may also need to manage these buildings or collect rents.
  • Filing for survivor benefits, such as life insurance, pension benefits, and government benefits such as veteran’s benefits.
  • Selling assets if money is needed to pay bills. Usually, the probate court must approve any sale of real estate.
  • Investing and protecting estate assets.

HOW A PROBATE LAWYER CAN HELP

In Georgia, an estate executor/administrator has many responsibilities which are among the highest imposed under Georgia law. If you proceed without an attorney, it will be your responsibility to determine and select the probate proceeding that is appropriate for your case as well as all the decisions which go along with this fiduciary duty and responsibility. The probate court and clerk's office personnel cannot give legal advice on how you should handle your case. It will be your responsibility to properly complete all forms and the court staff will only give answers to basic non-legal questions.

A Georgia Probate or Georgia Estate Attorney can assist you in determining how to proceed in a manner which is the most appropriate for your particular situation given the dynamics of your particular estate. Additionally, usually there are other matters, like filing tax returns, preparation of deeds, title transfers, benefit claims, creditor notices and debtor demands, that make it necessary to seek the services of an attorney.

One of the most important decisions that a person can make when entrusting the probate of a will or the administration of an estate to a probate and estate attorney is to obtain the assistance of someone you can trust to handle such important matters and who has the experience and capabilities to handle such matters. The Atlanta Estate and Probate Attorneys at The Libby Law Firm have represented hundreds of families throughout the United States who are dealing with the difficult task of handling their loved one's estate. Our Atlanta probate and estate attorneys understand that the probate process is complicated, and at times, overwhelming. Please contact us to discuss how one of our Georgia probate lawyers can assist you with your estate matter.

WHAT IS A BREACH OF FIDUCIARY DUTY?

A fiduciary duty is one of the highest duties imposed under Georgia law. A fiduciary is a person put in a position of trust and is expected to be loyal to the person to whom he or she owes the fiduciary duty. The fiduciary duty imposed by Georgia law holds fiduciaries to attentive and honest conduct and behavior. For example, he or she must not put his personal interests before the duty, and must not profit from his position as a fiduciary or engage in self-dealing. In an estate or probate situation, the executor of the estate has the duty to make decisions that benefit the entire estate. This is commonly referred to as the executor's/administrator's "fiduciary duty." For example, people who have been given a power of attorney of some one's financial affairs have the fiduciary duty not to squander that person's assets.

Fiduciary duty frequently becomes an issue during the management of Georgia probate estates because many times interested parties--like beneficiaries of the estate--also serve as executors/administrators of the estate. Unfortunately, there are untrustworthy or self-dealing executors/administrators who make their own financial gain a priority over the best interests of the estate.

If you feel that an estate administrator or executor is taking advantage of their position and using the estate administration to their own benefit, please contact the Atlanta Estate Planning Attorneys at The Libby Law Firm in the Buckhead section of Atlanta, Georgia. We have represented countless administrators, executors, heirs, beneficiaries, estates, and personal representatives in all stages of the Georgia estate administration process and Georgia probate matters, including cases where breach of fiduciary duty is alleged, where there are material issues and questions that require and necessitate clarification and answers or where fiduciary accountability is justified and essential.

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