(For Effective Date, See note.) Power to Borrow Money, Make and Fulfill Contracts, Provide Legal Counsel, Continue Decedent's Business, and Perform Other Acts

1. Law
2. Georgia Code
3. Wills, Trusts, and Administration of Estates
4. Administration of Estates Generally
5. Powers and Duties Generally
6. (For Effective Date, See note.) Power to Borrow Money, Make and Fulfill Contracts, Provide Legal Counsel, Continue Decedent's Business, and Perform Other Acts

1. Except as otherwise provided in the will or ordered by the probate court, a personal representative is authorized:
   1. To borrow money and to bind the estate by the execution of a promissory note for money borrowed and to pledge any or all the property of the estate for the payment of such a promissory note by mortgage, trust deed, deed to secure debt, or other security instrument, for the purpose of paying any gift, estate, inheritance, income, sales, or ad valorem taxes due the United States, the state, or any municipality or county of the state that constitute a claim or demand against the estate; provided, however, that a personal representative who desires to borrow money shall file a petition with the probate court, setting forth the facts and specifying the amount to be borrowed, the purpose for which the same shall be used, the rate of interest to be paid, the property to be pledged as security and the period of time over which the loan is to be repaid and, upon service of notice of the petition, an order granting leave to borrow the money and encumber the estate shall be entered and such order shall be binding, final, and conclusive as to all interested parties;
   2. To make contracts for labor or service for the benefit of the estate upon such terms as the personal representative deems best and all such contracts made in good faith shall be a charge upon and bind the estate whenever such contracts are approved by the probate court after service of notice;
   3. To fulfill, as far as possible, the executory contracts and comply with the executed contracts of the decedent, including contracts for the sale of land or bonds to make title to land, and shall have a corresponding right to demand the same of parties contracted with; provided, however, that if the personal skill of the decedent entered into the consideration of the contract and the decedent's death renders execution impossible, the contract, though entire, shall be considered divisible and closed at the decedent's death and any partial execution by the decedent shall authorize and require a corresponding compliance by the other contracting party;
   4. To provide competent legal counsel for the estate according to the needs of the estate and, in such cases, either the personal representative or the attorney employed may, by petition to the probate court and citation served on the other, obtain a judgment fixing the attorney's fees and expenses;
   5. To continue the business of the decedent for the 12 months following qualification of the personal representative, after which the personal representative may petition for permission to continue the business under such terms and conditions as the probate court may specify after service of notice; and
   6. To petition the probate court for permission to perform such other acts as may be in the best interests of the estate after service of notice.
2. Service of notice of any petition to the probate court under subsection (a) of this Code section shall be made in the manner provided by Chapter 11 of this title. The probate court, in its discretion, may, but shall not be required to, conduct a hearing on any such petition.

(Code 1981, §53-7-6, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2020, p. 377, § 1-38/HB 865.)

Cross references.

- Substitution of parties to contract generally, § 13-4-20.

Impossibility as excuse from performance, § 13-4-21.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, a comma was inserted after "final" near the end of paragraph (1).

COMMENT

This section carries forward former OCGA Secs. 53-7-7 through 53-7-11. Paragraph (3) also includes an authorization for the personal representative to fulfill the decedent's contracts and bond as to real property, as is contemplated by OCGA Sec. 53-7-96. Paragraph (5) modifies the rule of former OCGA Sec. 53-7-11 by allowing the personal representative to continue the decedent's business for twelve months (rather than "until the expiration of the current year" as provided in the former law) and then petition the probate court for permission to continue further upon conditions set up by the probate court (rather than having to petition from year to year, as required by the old law). New paragraph (6) allows the personal representative to petition the court to perform acts other than those enumerated in the Code section. For general provisions regarding the filing and hearing of petitions in the probate court and notice, see Chapter 11.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. §§ 53-7-8, 53-7-9, and53-7-10 are included in the annotations for this Code section.

Payment of attorney's fees.

- Given a widow's commission of undue influence in procuring a conveyance of beach property to herself and her son, it was not the decedent's intent in including an in terrorem clause to wholly immunize her from the entire amount of attorney's fees incurred by the estate in the undue influence litigation. Her share of the estate, like all the bequests, would be reduced in value after payment of the fees under O.C.G.A. § 53-7-6(4). Pate v. Wilson, 286 Ga. 133, 686 S.E.2d 88 (2009).

Noncompetition agreement alone not personal service contract.

- While a noncompetition agreement joined with affirmative promises is a personal services contract which terminates upon the death of the promisor, a noncompetition agreement standing alone, with no affirmative promises, is not. Mail & Media, Inc. v. Rotenberry, 213 Ga. App. 826, 446 S.E.2d 517 (1994) ??? (decided under former O.C.G.A. § 53-7-8).

Attorney's fees.

- Good faith is necessary for the administrator as well as the executor who seeks to bind the estate for attorney fees. Hudson v. Abercrombie, 258 Ga. 729, 374 S.E.2d 83 (1988) ??? (decided under former O.C.G.A. § 53-7-10).

Temporary administrator's right to attorney fees may not extend beyond fees for such services as may have been necessary to assist the administrator in the securing of temporary letters of administration and the collection and preservation of the assets of the estate. Hudson v. Abercrombie, 258 Ga. 729, 374 S.E.2d 83 (1988) ??? (decided under former O.C.G.A. § 53-7-10).

Coexecutor was not entitled to attorney's fees when it was found that the fees the coexecutor claimed were unrelated to the administration of the estate. Nesmith v. Pierce, 226 Ga. App. 851, 487 S.E.2d 687 (1997) ??? (decided under former O.C.G.A. § 53-7-10).

Cited in Citizens & S. Trust Co. v. Hicks, 216 Ga. App. 338, 454 S.E.2d 207 (1995); Ray v. Nat'l Health Investors, Inc., 280 Ga. App. 44, 633 S.E.2d 388 (2006).

ADVISORY OPINIONS OF THE STATE BAR

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 53-7-10 are included in the annotations for this Code section.

Attorney as executor or trustee in will or trust prepared by attorney.

- It is not ethically improper for a lawyer to be named executor or trustee in a will or trust he or she has prepared, so long as the lawyer does not consciously influence the client in the decision to name him or her executor or trustee, and he or she obtains the client's written consent in some form or gives the client written notice in some form after a full disclosure of all the possible conflicts of interest. In addition, the total combined attorney's fee and executor or trustee fee or commission must be reasonable and procedures used in obtaining this fee are in accord with Georgia law. Adv. Op. No. 91-1 (Sept. 13, 1991).

Download our app to see the most-to-date content.