Taking care of someone’s estate after they pass away is no easy feat. Estate personal representatives take on significant legal duties. Family matters may get complicated, and beneficiaries, creditors and heirs have conflicting interests. The process can be a headache and cause a lot of stress.
Estate disputes are unfortunately all too common. You may be a beneficiary or heir who hasn’t received your full due from the estate. You may be an estate or trust fiduciary who gets sued by a beneficiary.
When left unchecked, estate disputes can drag on for years and wipe out an estate’s fortune before finally arriving at a resolution where no one’s actually happy. But with effective legal representation, you can protect your interests and avoid this unfortunate scenario.
How Do You Become an Administrator of an Estate in Georgia?
Georgia state law requires most estates best established in the county of the deceased lived. This role is called a personal representative under Georgia law.
Even if the deceased person has appointed an executor in their will, this petition must still be filed with the probate court to get legal authority to act on behalf of the estate. If an executor has been appointed in a will, the probate court will issue Letters Testamentary. If the court appoints an administrator, the court will issue Letters of Administration.
The representative must then notify all heirs and beneficiaries as required under the will and state law. This kicks off the estate administration and distribution process.
An estate executor named in a will is usually someone whom the deceased trusted to carry out their final wishes. For married individuals, this is often their spouse. But almost anyone can be appointed – a sibling, a parent, a child, one or more heirs, someone chosen by a majority of heirs, an attorney, a bank, or even the local county administrator.
If an executor is a trusted heir but not actually an experienced estate administrator, they may not even know where to begin, much less how to handle the entire probate process. This is where a knowledgeable estate attorney is critical to a successful estate distribution. Your lawyer can help guide you on the best path forward according to your loved one’s wishes.
How Long Does an Administrator Have to Settle an Estate in Georgia?
Georgia law imposes no time limit on settling an estate, and an estate can be administered for as little as six months to many years, depending on its size, creditors and other issues.
Generally, the sooner you can get through the process of settling an estate’s affairs, the better. Any unresolved parts of an estate may create legal issues, and hence increased expense, if not handled properly. An experienced estate administration attorney can make sure all loose ends are tied up.
Probate & Estate Administration
Probate describes the court-supervised process of distributing assets in a deceased person’s estate after their passing.
Having a legally valid will in place is the first step to avoiding as much as possible the probate process.
If a deceased person leaves no valid will in place at the time of their passing, their estate will have to go through administration before getting distributed to heirs. The experienced team at Cheeley Legal can help provide guidance to personal representatives, beneficiaries, heirs and creditors during this process.
Does an Estate Have to Go Through Probate in Georgia?
In Georgia, some estate assets don’t require a court’s supervision to be distributed and settled. For some assets you can actually skip the probate process. For example:
- Joint tenancy property
- Assets held in a revocable living trust or irrevocable trust
- Assets with beneficiary designations in place, like insurance policies or bank accounts
Whether the probate court gets involved or not, an estate’s executor or administrator must fulfill their fiduciary duties to the heirs and beneficiaries of the estate.
The stakes are high, and the probate process is complicated, which is why it’s best to get advice from an estate administration attorney as soon as possible.
Georgia’s Probate Process
The Georgia estate probate process involves three phases:
- Identifying and collecting all assets of the deceased person’s estate,
- Settling any debts and taxes owed, and
- Distributing any assets that remain to the decedent’s beneficiaries or heirs.
Most of the heavy lifting in this process falls to the estate’s personal representative. Handling probate without experienced legal help can not only present significant challenges but can also delay the distribution of assets from the estate.
Once a personal representative has been officially appointed through the probate court, the process of settling the estate can begin. The executor or administrator has a legal duty to:
- Make sure the deceased’s funeral arrangements are carried out as desired
- Locate and file the original will and all relevant documents with the court
- Notify all heirs, beneficiaries, next of kin, and creditors about developments in the probate process – this may include publishing a Notice of Hearing in a legal newspaper or searching for heirs that may not be in immediate contact
- Obtain and submit the necessary documentation for insurance claims
- Identify and locate any safety deposit boxes or physical assets
- Gather documentation for real estate deeds, leases, titles, or insurance policies
- Check on benefits such as VA, pension, or social security benefits
- Identify the deceased person’s bank accounts and move those funds into the estate
- Account for and take control of all other assets such as stocks and bonds
- Get assets appraised if necessary (such as jewelry)
- Create an accurate inventory of all the assets in the estate and their value
- Determine what debts exist and how much – this could include mortgages, loans, medical bills, credit card bills, and any other outstanding bills
- Negotiate the payment of debts from the estate’s assets
- Supervise any businesses under the estate until sold or distributed
- Manage any income-generating real estate until sold or distributed
- Determine how much the estate owes in state and federal taxes
- Fight any invalid claims to the estate in court
And more. That’s a lot of responsibility, especially for one person – especially if that person hasn’t actually managed an estate before. To up the stakes, the estate representative must do all of this and uphold their fiduciary duties.
Estate Litigation and Breaches of Fiduciary Duty
Whoever gets appointed as a personal representative has the legal duty to act in good faith and in the best interests of the estate’s beneficiaries.
- The duty of care requires the administrator to act competently and reasonably. This includes hiring the right professional help for proper estate administration.
- The duty of loyalty means the administrator cannot prioritize their own personal interests above the interests of the estate they’re managing.
- The duty of obedience requires the administrator to comply with the deceased person’s wishes to the fullest extent possible.
If a fiduciary starts self-dealing, paying themselves too much, making improper investments, stealing or pilfering assets, or sabotaging the deceased person’s wishes, the beneficiaries or heirs can sue them for breaching their fiduciary duties.
If successful, a lawsuit can recover damages against the personal representative for the harm that their actions have caused.
In some cases those who have claims against the estate who become unhappy or angry about the way the estate has been handled may make false allegations that the representative breached their fiduciary duty, even if the fiduciary did everything properly. A fiduciary lawyer can help defend personal representatives against false claims.