Personal representatives are authorized to compromise, adjust, arbitrate, assign, sue or defend, abandon, or otherwise deal with or settle debts or claims in favor of or against the estate. A personal representative who declines to litigate any claim may assign the claim to a creditor or an heir of an intestate estate or a beneficiary of a testate estate for the purpose of prosecuting the claim at that person's own expense and, after reimbursement of the expenses to the creditor, heir, or beneficiary, any remaining proceeds shall be paid over to the personal representative for administration.
(Code 1981, §53-7-45, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 22; Ga. L. 1998, p. 1586, § 34.)
Law reviews.- For article, "Joint Bank Accounts: A Different Form of Joint Tenancy," see 17 Ga. St. B.J. 184 (1981). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).
COMMENTThis section combines and replaces the provisions of former OCGA Secs. 53-7-104 through 53-7-107. Some of these provisions required court approval, whereas such approval is not required under this section. Former OCGA Sec. 53-7-103 appears at Code Sec. 53-6-31. Former OCGA Secs. 53-7-120 through 53-7-123, relating to the removal of the jurisdiction over the estate to another county, are repealed.
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 3426, former Civil Code 1910, § 4002, and former Code 1933, § 113-1510, are included in the annotations for this Code section.
Claim for a year's support is a claim against the estate; thus, the executor had authority under O.C.G.A. § 53-7-45 to settle the claim. Davis v. Hawkins, 238 Ga. App. 749, 521 S.E.2d 10 (1999).
Signing of estate tax return did not abandon claim.
- Trial court's denial of a sister's motion to dismiss an action by siblings, seeking to set aside quitclaim deeds that the parties' father had executed in favor of the sister, was proper because the siblings, as heirs at law and beneficiaries of the estate, were proper parties to have brought the action pursuant to O.C.G.A. §§ 53-7-2 and53-7-5(a) when it was clear that the co-executors, one of whom was the sister, were not going to bring the claim; there was no abandonment of the claim against the property despite the signing by the co-executors of a federal estate tax return under O.C.G.A. § 53-7-45, as the tax return was due and any changes based on rights to the property could have been set forth in an amended return. Field v. Mednikow, 279 Ga. App. 380, 631 S.E.2d 395 (2006).
Perpetuation of indulgence as exercised by testator prohibited.
- Administrator de bonis non would be liable for failure to collect a debt due the estate, which became uncollectible by reason of indulgence to the debtor by the administrator, even though the will provided that "the handling of my property and the operation of the business to be done by and through my executors hereinafter named just in the manner as near as practical as I have handled and operated my business during my life," and it was shown that the testator in the testator's lifetime had indulged the debtor for a long time. Musselwhite v. Ricks, 55 Ga. App. 58, 189 S.E. 597 (1936) (decided under former Code 1933, § 113-1510).
Retirement funds.
- There was evidence and legal authority to support the probate court's ruling that retirement funds belonged to the decedent's son because the son was named as beneficiary, and the funds did not pass into the decedent's estate because the executor testified that the executor concluded that the retirement funds were not an estate asset so the executor did not attempt to collect the funds from the son; resolution of the issue of the retirement proceeds in the context of a petition for settlement of accounts under O.C.G.A. § 53-7-63 fell within the probate court's jurisdiction, and the probate court did not err in failing to transfer the claim to the superior court under O.C.G.A. § 53-7-75 because the claim involved a conflict between the will and a designation of beneficiary, and not the construction of the will itself. In re Estate of Long, 307 Ga. App. 896, 706 S.E.2d 704 (2011).
Claim not in estate's best interest.
- There was evidence to support a probate court's finding that it was not in the estate's best interest to pursue a claim regarding a death-bed gift because the probate court's ruling that assignment of the claim passed to the residual beneficiaries under the decedent's will, and pursuant to O.C.G.A. § 53-7-45, the prosecution of the claim would be at the beneficiary's expense, comported with O.C.G.A. § 53-7-45, and the probate court had the authority to enter the finding; the ruling assigned the claim to the beneficiaries, including the decedent's daughter, who could pursue the claim at her own expense. In re Estate of Long, 307 Ga. App. 896, 706 S.E.2d 704 (2011).
Authority to settle claims.
- Decedent's wife, as the surviving spouse, was the proper party to seek damages for the decedent's wrongful death, and, as the administrator of the decedent's estate, damages for the decedent's shock, fright and terror prior to the collision, all components of the mental pain and suffering endured by the decedent upon impact up until the decedent's death, and funeral and burial expenses, and the wife had the authority to settle or compromise the claims without any input from the decedent's children. Leanhart v. Knox, 351 Ga. App. 268, 830 S.E.2d 545 (2019).
Cited in Traley v. Thomas, 98 Ga. 375, 25 S.E. 446 (1896); Bond v. Maxwell, 40 Ga. App. 679, 150 S.E. 860 (1929); Spence v. Phillips, 172 Ga. 782, 158 S.E. 797 (1931); Harrison v. Holsenbeck, 208 Ga. 410, 67 S.E.2d 311 (1951); Fuller v. Booth, 118 Ga. App. 685, 165 S.E.2d 318 (1968); Stewart v. Stewart, 240 Ga. App. 573, 524 S.E.2d 267 (1999).
RESEARCH REFERENCES
Am. Jur. 2d.
- 31 Am. Jur. 2d, Executors and Administrators, §§ 185, 186, 191, 192, 474 et seq.
C.J.S.- 34 C.J.S., Executors and Administrators, §§ 216, 239.
ALR.
- Measure of damages in action for personal injuries commenced by deceased in his lifetime and revived by personal representative, 7 A.L.R. 1355; 42 A.L.R. 187.
Right of executor, administrator, or testamentary trustee to commission in respect of his own debt to estate or trust, 88 A.L.R. 189; 104 A.L.R. 1301.
Payment to one of two or more trustees, executors, or administrators, 106 A.L.R. 109.
Payment of negotiable paper to, or enforcement thereof by, personal representative of owner appointed in one state as affected by appointment of another representative in another state, 114 A.L.R. 1461; 149 A.L.R. 1083.
Kind of verdict or judgment, or verdicts or judgments, where administrator or executor whose decedent was negligently killed brings an action which combines a cause of action for benefit of estate and another for statutory beneficiaries, 124 A.L.R. 621.
Trustee's power to compromise and settle claims and actions by or against trust estate, 35 A.L.R.2d 967.
Power and responsibility of executor or administrator to compromise claim due estate, 72 A.L.R.2d 191.
Amount of claim filed against decedent's estate as limiting amount recoverable in action against estate, 25 A.L.R.3d 1356.
Statute of limitations: effect of delay in appointing administrator or other representative on cause of action accruing at or after death of person in whose favor it would have accrued, 28 A.L.R.3d 1141.
ARTICLE 5 DISCHARGE AND RESIGNATION