(For Effective Date, See note.) Petition by Personal Representative for Discharge; Citation and Publication; Hearing; Subsequently Discovered Estate

1. Law
2. Georgia Code
3. Wills, Trusts, and Administration of Estates
4. Administration of Estates Generally
5. Discharge and Resignation
6. (For Effective Date, See note.) Petition by Personal Representative for Discharge; Citation and Publication; Hearing; Subsequently Discovered Estate

1. A personal representative who has fully performed all duties or who has been allowed to resign may petition the probate court for discharge from the office and from all liability. The petition shall state that the personal representative has fully administered the estate of the decedent and shall set forth the names and addresses of all known heirs of an intestate decedent or beneficiaries of a testate decedent, including any persons who succeeded to the interest of any heir or beneficiary who died after the decedent died, and shall name which of the heirs or beneficiaries is or should be represented by a guardian. The petition shall state that the personal representative has paid all claims against the estate or shall enumerate which claims of the estate have not been paid and the reason for such nonpayment. The petition shall also state that the personal representative has filed all necessary inventory and returns or, alternatively, has been relieved of such filings by the testator, the heirs or beneficiaries, or the probate court.
2. 1. Subject to paragraphs (2) and (3) of this subsection, upon the filing of a petition for discharge, citation shall issue to all heirs or beneficiaries, as provided in Chapter 11 of this title, requiring them to file any objections to the discharge, except that in all cases a citation shall be published one time in the newspaper in which sheriff's advertisements are published in the county in which the petition is filed at least ten days prior to the date on or before which any objection is required to be filed. Any creditors whose claims are disputed or who have not been paid in full due to insolvency of the estate shall be served in accordance with Chapter 11 of this title.
   2. Notwithstanding paragraph (1) of this subsection, it shall not be necessary to serve with notice any heir or beneficiary who has relieved the personal representative of all liability or any heir or beneficiary with respect to whom the personal representative has been relieved of all further liability in a binding proceeding such as a settlement of accounts pursuant to Code Sections 53-7-60 through 53-7-63 or an intermediate report pursuant to Code Sections 53-7-73 through 53-7-76.
   3. For purposes of this Code section, a beneficiary is a person, including a trust, who is designated in a will to take an interest in real or personal property and who (A) has a present interest, including but not limited to a vested remainder interest but not including a trust beneficiary where there is a trustee who is not also the personal representative seeking discharge and (B) whose identity and whereabouts are known or may be determined by reasonable diligence. For purposes of this Code section, a trust beneficiary may be represented as provided in Code Section 53-12-8.
3. If any party in interest files objection to the discharge, a hearing shall be held. If as a result of the hearing, the probate court is satisfied that the personal representative has faithfully and honestly discharged the office, an order shall be entered releasing and discharging the personal representative from all liability. If no objections are filed, the probate court shall enter the order for discharge without further proceedings or delay. Any heir or beneficiary or creditor who is a minor at the time of the discharge and who is not represented by a guardian may, within two years of reaching the age of majority, commence suit against the personal representative and such discharge shall be no bar to the action.
4. If other property of the estate is discovered after an estate has been settled and the personal representative discharged, the probate court, upon petition of any interested person and upon such service or notice as it directs, may appoint the same personal representative or a successor personal representative to administer the subsequently discovered estate. If a new appointment is made, unless the probate court orders otherwise, the provisions of this title shall apply as appropriate; but no claim previously barred may be asserted in the subsequent administration.
5. A personal representative may petition the court solely for discharge from office by filing the petition described in subsection (a) of this Code section and by serving notice by publication one time in the official county newspaper and by first-class mail to all creditors of the estate whose claims have not been paid informing them of their right to file an objection and be heard as described in subsection (c) of this Code section.

(Code 1981, §53-7-50, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 23; Ga. L. 1998, p. 1586, § 35; Ga. L. 2002, p. 1316, § 4; Ga. L. 2020, p. 377, § 1-44/HB 865.)

Law reviews.

- For article discussing methods of simplifying the administration of estates by excusing the executors from certain obligations, see 6 Ga. L. Rev. 74 (1971). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

COMMENT

This section combines and replaces former OCGA Secs. 53-7-140, 53-7-141, 53-7-143 and 53-7-145. Under this section, a discharge may be granted without a hearing if no interested party files an objection to the discharge. The petition for discharge must contain a list of any known claims against the estate that the personal representative has not paid. The creditors of these claims shall be given notice and the opportunity to file objections to the discharge. Subsection (e) is modeled after Uniform Probate Code Sec. 3-1008.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, §§ 4089, 4090, and 4091, former Code 1933, § 113-2301, Ga. L. 1953, p. 451, § 1, and former O.C.G.A. § 53-7-140 are included in the annotations for this Code section.

Administrator may not petition for discharge until the administrator has fully discharged all the administrator's duties, which includes the duty of distribution. Fuller v. Fuller, 107 Ga. App. 429, 130 S.E.2d 520 (1963) (decided under former Code 1933, § 113-2301).

Judgment of a probate court discharging an executor will relieve the executor from all liability on account of the executor's administration, unless it be impeached or set aside in some appropriate manner. First Nat'l Bank & Trust Co. v. Hirschfeld, 178 Ga. 581, 173 S.E. 663 (1934) (decided under former Code 1933, § 113-2301).

Retention of authority and obligations until discharge.

- Until an executor is properly discharged or otherwise relieved by law, an executor retains the authority of that appointment and the obligations of that fiduciary relationship with those the executor represents. Liner v. North, 188 Ga. App. 677, 373 S.E.2d 846 (1988) (decided under former O.C.G.A. § 53-7-140).

Discharge vacated.

- Probate court's order that discharged the administrator was vacated because a party in interest could file an objection to a petition for discharge and was entitled to a hearing thereon. Here, the administrator neither listed the creditor with a disputed claim, nor did the administrator serve the creditor with notice of the administrator's petition for discharge. In re Estate of Johnston, 318 Ga. App. 324, 733 S.E.2d 856 (2012).

Judgment of discharge may be impeached.

- Judgment of the court of ordinary (now probate court) discharging administrators may be impeached in that court for irregularity, or in the superior court for fraud. Morris v. Johnstone, 172 Ga. 598, 158 S.E. 308 (1931) (decided under former Civil Code 1910, §§ 4090 and 4091).

Judgment of a court of ordinary (now probate court) discharging an administrator will relieve the administrator from all liability on account of the administrator's administration unless it be impeached or set aside in some appropriate manner. Clair v. Burke, 62 Ga. App. 607, 9 S.E.2d 119 (1940) (decided under former Code 1933, §§ 113-2302).

Court did not err in sustaining general demurrer and dismissing petition seeking to hold defendant liable for money which defendant had deposited in a bank while acting as administrator since the judgment by the court of ordinary (now probate court) discharging defendant as administrator had not been attacked. Clair v. Burke, 62 Ga. App. 607, 9 S.E.2d 119 (1940) (decided under former Code 1933, §§ 113-2302).

Cited in Loyless v. Rhodes, 9 Ga. 547 (1851); Phoenix Mut. Life Ins. Co. v. Daniel, 46 Ga. App. 129, 167 S.E. 117 (1932); White v. Roper, 176 Ga. 180, 167 S.E. 177 (1932); Phoenix Mut. Life Ins. Co. v. Daniel, 46 Ga. App. 129, 167 S.E. 117 (1932); Robinson v. Georgia Sav. Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939); McMullen v. Carlton, 192 Ga. 282, 14 S.E.2d 719 (1941); Crow v. Martin, 66 Ga. App. 76, 17 S.E.2d 90 (1941); Neal v. Stapleton, 203 Ga. 236, 46 S.E.2d 130 (1948); Sublusky v. Fudge, 121 Ga. App. 674, 175 S.E.2d 100 (1970); Killingsworth v. First Nat'l Bank, 237 Ga. 544, 228 S.E.2d 901 (1976); Bacon v. Smith, 222 Ga. App. 542, 474 S.E.2d 728 (1996); Sublusky v. Fudge, 121 Ga. App. 674, 175 S.E.2d 100 (1970); Sinclair v. Sinclair, 284 Ga. 500, 670 S.E.2d 59 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 113-2307, 113-2308, and 113-2309 and Ga. L. 1971, p. 433, § 3, are included in the annotations for this Code section.

Executor is not required to wait six months after the executor's qualification before the executor may file a petition for discharge pursuant to Ga. L. 1964, p. 269, §§ 1-3. 1974 Op. Att'y Gen. No. U74-35 (decided under former Code 1933, §§ 113-2307 - 113-2309 and Ga. L. 1971, p. 433, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 269, 272, 309, 900.

C.J.S.

- 33 C.J.S., Executors and Administrators, § 100.

ALR.

- When statute of limitations begins to run against action on bond of personal representative, 44 A.L.R.2d 807.

Appointment of guardian for incompetent or for infant as affecting running of statute of limitations against ward, 86 A.L.R.2d 965.

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