We frequently meet with clients about Wills and Probate issues – and one of the first questions we are asked is about the duties of the executor of a will in Georgia. Below, we briefly summarize the duties and obligations of an executor of a Last Will and Testament in Georgia.
Step One: Take the Oath of Office
Before someone can begin performing duties as Executor, the person must get sworn in by the probate court in the county where the decedent last resided (or where they own any real property). In other words, the Executor must take an oath of office swearing that he will perform all of his obligations and duties in good faith and in full compliance of the law. If the decedent has a Last Will & Testament then the original Will document must be included with the petition for submission to Probate. When submitting these documents to the Clerk of the Probate Court, they will perform the swearing in at this time. After this is complete then in 3-4 weeks the Executor should receive a document in the mail from the Clerk evidencing his or her authority to administer the estate called one of the following: “Letters Testamentary,” “Letters of Administration with Will Annexed, or “Letters Administration.”
Step Two: Marshaling the Assets
The first duty as the appointed Executor (called the “Administrator” in the absence of a Will) is to locate, gather and take possession of all the decedent’s assets. These are called “probate assets” which is any type of property owned by the deceased including, but not limited to, furniture, jewelry, automobiles, bank accounts, and real property. However, not all property owned by the decedent qualifies as a “probate asset” so you may need to contact our office for further guidance where the decedent owned property jointly with others (co-ownership).
Step Three: Paying the Debts & Expenses of Administration
After marshaling the assets, the Executor must pay creditors before distributing any property to the heirs or beneficiaries. The Executor must publish a notice to creditors within 60 days of the date that the Executor takes office. Notice must run for four consecutive weeks in the official county newspaper. If any creditor demands are made for payment then they must be paid before any heirs or beneficiaries receive any property.
Step Four: Selling of Estate Property
The Executor often may need to sell property to either pay for debts or expenses, or to better be able to distribute estate assets or monies among the beneficiaries. If so, authority must be given through the terms of a Will, by law, or by the court.
Step Five: Tax Returns
The Executor must file certain tax returns and may be held liable for failing to pay federal and/or state taxes from estate assets. This may include both income tax returns and estate tax returns. We strongly encourage you to contact a Certified Public Accountant (CPA) for further assistance.
Step Six: Distributing the Estate to Heirs or Beneficiaries
After paying creditors, estate expenses and taxes, the remaining assets (if any) may be distributed to the heirs or beneficiaries of the estate. If a Will is present, then the Will directs to whom certain property should be distributed to and the Executor must act accordingly in the confines of the law. In the absence of a Will, then State law determines the recipients of the property.
Step Seven: Filing Returns or Reports
The Executor must keep complete and accurate records of all dealings in the administration of the Estate. The Court may call upon the Executor at any time to file reports with the Court and the Executor must provide such documentation.
Step Eight: Closing the Estate
After all completion of all the Steps listed above, the Executor will need to be discharged from office and all liability. This is done by filing a Petition for Discharge with the Probate Court.
In performing the tasks that I have outlined above, one may find that while navigating through the court system and in dealing with third-parties, issues arise requiring further legal guidance and the assistance of an experienced attorney.