Does the Executor of an Estate Need a Probate Attorney in Georgia?

last will and testament with pen

Under Georgia law, the executor of an estate has substantial legal responsibilities. Completing probate and estate administration involves numerous complex legal documents and details — and it takes time. Individuals named as executor in a will often express surprise when they realize the seriousness and complexity of the duties of the position. A frequent complicating factor is that the people who benefit from the estate are family members or close friends.

While an executor is not required to have a lawyer assist with estate administration, retaining an experienced probate attorney ensures meeting all the legal requirements and making certain that the executor fulfills the fiduciary duties imposed by state law. Our Cartersville probate attorneys at Asset Protection & Elder Law of Georgia assist executors and administrators in completing the probate and estate administration process in counties throughout the region.

Executors, Administrators & Personal Representatives

When you make a Last Will and Testament, you name an executor for your estate. Following your death, the executor is responsible for collecting your assets, paying the costs and debts of your estate, completing all required legal processes, and ultimately distributing your assets to the beneficiaries of your estate.

If you die without a will, your estate does not have an executor. Someone must petition the court for appointment as administrator of the estate.

An executor or administrator is referred to as the personal representative of the estate. All personal representatives have the same substantial legal responsibilities for completing probate and administration of the estate. Individuals who serve either as an executor or administrator are well-advised to retain an experienced probate attorney to assist them in fulfilling their legal fiduciary responsibilities.

Legal Authority of an Executor

Being named as the executor in a will does not vest any legal authority in the executor to administer the estate. If the executor wishes to fulfill the responsibilities of the position, the first step is to petition the court for Letters Testamentary, which authorize the executor to act as personal representative of the estate. (An administrator similarly applies for Letters of Administration.)

After the court issues Letters Testamentary, the executor has the legal authority and a legal obligation to proceed with all steps necessary to complete probate and administration of the estate. In carrying out the responsibilities of the position, the executor is subject to numerous specific requirements in Georgia statutes and court decisions.

Fiduciary Responsibilities of an Executor or Administrator

Throughout the probate and estate administration process, the personal representative has fiduciary responsibilities under state law. Fiduciary duties are one of the highest standards of conduct imposed by law.

In carrying out the fiduciary responsibilities, an executor (or administrator) must act solely in the interests of the estate and the beneficiaries and with integrity, honesty, diligence, accuracy, and care in all matters. An executor who disregards the interests of the estate and beneficiaries in any way, acts in self-interest, or profits from the position is subject to lawsuits and court mandates, as well as legal liability for improper actions.

The Georgia Supreme Court addressed the fiduciary duties of an executor in the case of Peterson v. Peterson (Case No. S17A1488, March 5, 2018). In that case, the Court held that the fiduciary standards for an executor apply equally to discretionary powers given to an executor in a will, just as they do to the mandatory duties of the position. So even in exercising discretionary powers granted by the decedent, an executor must serve the interests of the estate and beneficiaries in a fiduciary manner.

A breach of fiduciary duty by an executor isn’t always intentional. It can happen inadvertently or accidentally, simply because the executor is not fully aware of what the fiduciary responsibilities of an executor entail. A probate attorney makes sure that an executor fulfills all fiduciary duties under the law.

The Probate and Estate Administration Process in Georgia

Probate is a court-supervised legal process that is required for some assets in an estate. Even if an estate does not have any probate assets, the executor of an estate still must complete certain legal steps to administer the estate.

The probate and estate administration processes are complex and detailed. There are specific actions to take, deadlines to honor, and legal forms to file.

Initially, the executor must identify and protect all property of the decedent and assign valuations to the assets. Estate assets include the deceased person’s real and personal property, financial accounts, retirement accounts, and other assets like life insurance policies.

After identifying all the property in the estate, the executor determines which items qualify as probate assets, and which are non-probate assets. That classification determines the process for administering the asset and ultimately distributing it to the beneficiary.

As part of the administration process, the executor addresses costs, debts, and taxes of the decedent and the estate. Specific notices to potential creditors are required. If the estate is insufficient to pay all debts, state law establishes a priority for paying claims. Required state and federal tax returns must be filed as well.

The executor follows the instructions in the will for distributing the property in the estate. (When there is no will, state law determines how the administrator distributes the property.) Before the actual distribution is made, the personal representative typically prepares an accounting that shows the planned distribution.

When all steps have been completed, the executor or administrator files a petition asking the court to close the estate and discharge the personal representative from their legal duties.

How a Georgia Probate & Estate Administration Lawyer Assists an Executor of an Estate

The high legal standards that apply to an executor’s conduct in carrying out probate and estate administration responsibilities and the detailed and complex process are important reasons for an executor to rely on an experienced attorney. A probate lawyer makes certain that all legal requirements are satisfied in a timely manner and that the executor performs all the duties of the position in compliance with the mandatory fiduciary standards.

Being assisted by an attorney also helps the executor navigate through a process that involves close relationships and family members who are likely anxious for the process to reach a conclusion. Having a lawyer avoids unnecessary additional stress for everyone concerned, during a time when family members are experiencing difficult emotions and grief after the loss of their loved one.

In some situations, tension and disagreements arise in a family during administration of an estate. In that event, the executor relies on the probate lawyer to navigate through the process as seamlessly as possible, without interruptions due to the family situation.

Contact an Experienced Cartersville Probate Attorney

Probate of a Georgia estate typically occurs in the county where the deceased person lived or where Georgia property in the estate is located. Our probate attorneys at Asset Protection & Elder Law of Georgia assist executors and administrators with probate in Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County, and Paulding County. In addition to working with personal representatives of estates, we help out-of-state heirs and beneficiaries who are handling or have an interest in a Georgia estate. We welcome you to contact us for assistance with a probate or estate administration matter.

Categories: Estate Planning