An administrator may be unanimously selected by all the heirs of a deceased intestate unless the sole heir is the decedent's surviving spouse and an action for divorce or separate maintenance was pending between the deceased intestate and the surviving spouse at the time of death. With respect to any heir who is not sui juris, consent may be given by the guardian of the individual. 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 order of preferences:
(Code 1981, §53-6-20, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 22.)
Law reviews.- For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986).
COMMENTThis section replaces subsection (a) of former OCGA Sec. 53-6-24. See Code Sec. 53-1-2 for the definitions of "administrator," "county administrator," "heir," and "person". See Code Sec. 53-6-1 for the eligibility requirements of personal representatives.
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. §§ 53-6-24 and53-6-25 are included in the annotations for this Code section.
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 and53-6-25).
Appointment of successor executor.
- Subsection (b), providing for appointment of a successor executor, applies 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.