(For Effective Date, See note.) Selection by Beneficiaries

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Administrators and Personal Representatives
  5. Appointment
  6. (For Effective Date, See note.) Selection by Beneficiaries

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  1. For purposes of this Code section, a beneficiary who is capable of expressing a choice is one:
    1. Who has a present interest, including but not limited to a vested remainder interest but not including trust beneficiaries where there is a trustee; and
    2. Whose identity and whereabouts are known or may be determined by reasonable diligence.
  2. An administrator with the will annexed may be unanimously selected by the beneficiaries of the will who are capable of expressing a choice unless the sole beneficiary is the decedent's surviving spouse and an action for divorce or separate maintenance was pending between the decedent and the surviving spouse at the time of death. When no such unanimous selection is made, the probate court shall make the appointment that will best serve the interests of the estate, considering the following preferences:
    1. Any beneficiary or the trustee of any trust that is a beneficiary under the will; or
    2. Those persons listed in paragraphs (3) through (5) of Code Section 53-6-20.
  3. (For effective date, see note.) For purposes of this Code section, a beneficiary's choice is expressed by:
    1. That beneficiary, if the beneficiary is sui juris;
    2. That beneficiary's duly acting conservator or guardian or, if there is no conservator or guardian, the person having custody of the beneficiary, if the beneficiary is not sui juris;
    3. The trustee of a trust that is a beneficiary under the will, where there is a trustee;
    4. The beneficiary of a trust that is a beneficiary under the will, where there is no trustee; provided, however, that for purposes of this paragraph, a trust beneficiary may be represented as provided in Code Section 53-12-8; or
    5. The personal representative of a deceased beneficiary receiving a present interest under the will.

(Code 1981, §53-6-14, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 11; Ga. L. 2020, p. 377, § 1-29/HB 865.)

Law reviews.

- For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

COMMENT

This section replaces former OCGA Sec. 53-6-24(b) and repeals the requirement of former OCGA Sec. 53-6-23 that an administrator with the will annexed who is not also an heir be a citizen of the United States residing in Georgia. See Code Sec. 53-6-1 for the eligibility requirements for personal representatives. See Code Sec. 53-11-2 for provisions relating to the appointment of a guardian for an individual who is not sui juris. See Code Sec. 53-1-2 for the definitions of "administrator with the will annexed," "beneficiary," and "personal representative."

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-6-24 are included in the annotations for this Code section.

Appointment of personal representative.

- When the statute did not resolve a contest for appointment as personal representative, and the appellate court was not provided a transcript of the proceedings before the trial court, the appellate court had to presume the evidence before the trial court authorized the court's judgment that the appointment of the person the court selected was in the best interests of the estate. Sherard v. Aldridge, 251 Ga. App. 445, 554 S.E.2d 590 (2001).

Selection of most nearly related relative.

- Selection of intestate's daughter, rather than a grandson, to act as administrator was proper because the daughter was nearer to the intestate by blood and two of the three next of kin who were distributees had selected the daughter to so act. Brannen v. Boyce, 190 Ga. App. 385, 378 S.E.2d 743 (1989) (decided under former O.C.G.A. § 53-6-24).

Effect of divorce or separation.

- Surviving spouse is not entitled to serve as administrator of her estranged spouse's estate merely because the couple's divorce decree was not made the final order of the court at the time of spouse's death. Simpson v. King, 259 Ga. 420, 383 S.E.2d 120 (1989) (decided under former O.C.G.A. § 53-6-24).

Effect of pending divorce.

- When there was a divorce pending at the time of decedent's death, the surviving spouse was disqualified to act as administrator but, since the decedent died without lineal heirs, such disqualification did not change the spouse's status as the sole heir; neither decedent's father nor decedent's siblings were "next of kin" interested in the estate as distributees and the father had no standing to challenge the probate court's proper appointment of the county administrator as administrator of the estate. McClinton v. Sullivan, 263 Ga. 711, 438 S.E.2d 71 (1994) (decided under former O.C.G.A. § 53-6-24).

Acquiescence in an application is not tantamount to nomination. General Accident Ins. Co. v. Wells, 179 Ga. App. 440, 346 S.E.2d 886 (1986) (decided under former O.C.G.A. § 53-6-24).

Creditors may not appoint non-creditor.

- When appointee was not a creditor of the estate, the appointee was not qualified to be appointed by the estate's creditors under paragraph (6) of former O.C.G.A. § 53-6-24. General Accident Ins. Co. v. Wells, 179 Ga. App. 440, 346 S.E.2d 886 (1986) (decided under former O.C.G.A. § 53-6-24).

Caveator is not prohibited from being appointed as administrator. Glad v. Scott, 187 Ga. App. 748, 371 S.E.2d 271 (1988) (decided under former O.C.G.A. § 53-6-24).

Beneficiaries' right to choose administrator.

- Because the statute did not declare that all the beneficiaries under a will must agree to the naming of an administrator with will annexed, the rule of construction in O.C.G.A. § 1-3-1(d)(5), that a joint authority given to any number of persons or officers may be executed by a majority of them unless it is otherwise declared applied. Dismuke v. Dismuke, 195 Ga. App. 613, 394 S.E.2d 371 (1990), cert. denied, 1995 Ga. LEXIS 1050 (1995), cert. denied, 1999 Ga. LEXIS 39 (1999) (decided under former O.C.G.A. § 53-6-24).

Revocation of letters of administration.

- Since the findings and conclusions of the probate court established that a former spouse's marital status was not correctly stated in the former spouse's application for letters of administration, and that this incorrect information was a material factor in the issuance of those letters, it was not an abuse of discretion to remove the former spouse as administrator of the deceased's estate. In re Estate of Dunn, 236 Ga. App. 211, 511 S.E.2d 575 (1999) (decided under former O.C.G.A. § 53-6-24).

Appointment of successor executor.

- Former subsection (b), providing for appointment of a successor executor, applied only in the absence of a testamentary provision covering such appointment. Thomas v. Thomas, 262 Ga. 707, 425 S.E.2d 287 (1993) (decided under former O.C.G.A. § 53-6-24).

Cited in Blount v. Spell, 172 Ga. App. 411, 323 S.E.2d 211 (1984); Wilson v. Willard, 183 Ga. App. 204, 358 S.E.2d 859 (1987); Clarke v. Clarke, 188 Ga. App. 198, 372 S.E.2d 475 (1988).

RESEARCH REFERENCES

ALR.

- Adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative, 11 A.L.R.4th 638.


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