by Allison L. Byrd, Morgan & DiSalvo, P.C.
When a Georgia resident dies owning any assets that do not transfer automatically, either to a surviving joint owner or under a valid beneficiary designation, those assets constitute the deceased person’s “probate estate.” If that deceased person had a Will in place (a person who has made a Will is sometimes called a “testator”), the probate estate is sometimes referred to as a “testate estate.” In order for assets in a testate estate to be administered, the testator’s Will must be proven to be valid, or “probated,” in the appropriate Probate Court. During the probate process, the Probate Court will appoint an Executor to administer the estate. The Executor’s job is to gather the probate assets, pay any applicable taxes, debts, and expenses of administration from those assets, and transfer the remaining or “net” probate estate assets to the beneficiary or beneficiaries named in the Will.
It is customary for Wills to name an individual or a corporate fiduciary, such as a trust company, to serve as Executor of the Will. However, no one, not even a person or entity named in the Will to serve as Executor, has the legal power to act as Executor and to administer the estate until the appropriate Probate Court has been presented with a petition to probate the Will, has found the Will to be valid, and has officially appointed an Executor by issuing an order referred to as “letters testamentary” or “letters of administration with Will annexed.” Such “letters” give the Executor (sometimes called the “Personal Representative”) named in the letters the exclusive legal authority to administer the testator’s probate estate.
Historically under Georgia probate law, anyone presenting a petition to a Probate Court to probate a Will and be appointed as the Executor is required to notify the testator’s heirs of the pending petition. A deceased person’s heirs are the closest surviving relatives of that person, by blood or adoption, who would be entitled by law to receive that deceased person’s net probate estate if that deceased person had died without a valid Will. A person who is an heir may or may not also be a beneficiary under the Will. Each heir of the testator has the right to be notified of a pending petition to probate the testator’s Will, the right to file a challenge to the probate of the Will if the heir believes the Will to be invalid, and the right to challenge the appointment of the would-be Executor if the heir does not believe that person or entity should be allowed to serve as Executor.
However, Georgia has a new probate law going into effect on July 1, 2023 that imposes new and additional requirements on appointed Executors. The new statute, Official Code of Georgia (“O.C.G.A.”) § 53-5-8, requires an appointed Executor to send a notice of that appointment to the beneficiaries under the Will. The notice must be sent by certified or registered mail, or by statutory overnight delivery with return receipt requested, within 30 days following the issuance of the appointment, and the notice must inform the beneficiary of the appointment of an Executor and of that Executor’s name, mailing address, and telephone number. However, notice is not required to be sent to any beneficiary who has waived the right to such notice in writing. Within 60 days of the appointment, the Executor must file copies of any such waivers and notices, the return receipts for each, “and, with respect to any such beneficiary whose identity and whereabouts are unknown, an affidavit of diligent search attesting under oath to the efforts of such personal representative to identify and locate such beneficiary.” O.C.G.A. § 53-5-8(b).
An Executor who fails to provide accurate information regarding the Executor’s name, mailing address, and telephone number within five business days of a request for such information by a beneficiary or by a Probate Court, or who otherwise fails to comply with the requirements of the new law, may be required to appear in the Probate Court for a hearing and risks having the appointment as Executor of the estate revoked if the Probate Court finds the Executor to be in violation of the new law. O.C.G.A. § 53-5-8(c).
This new law raises a number of issues, including exactly which beneficiaries qualify to receive notice. The new law defines a “beneficiary” as “a person, including a trust, that is designated in a will to take an interest in real or personal property; that 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 required to give notice; and whose identity and whereabouts are known or may be determined by reasonable diligence.” O.C.G.A. § 53-5-8(a). However, the concepts of “present interests” and “vested remainder interests” are not clearly defined in the Georgia statutes that govern Wills, Trusts, and administration of estates, and are instead largely dependent on Georgia case law, which, in the absence of a governing statute, are derived from English common law. Additionally, if a Will transfers property to a new or existing Trust, and the same person who is serving as Executor is or will be serving as Trustee of the Trust, then that person will also need to give notice to the Trust beneficiaries. Due to this ambiguity regarding exactly which beneficiaries are entitled to receive notice under the new law, Executors will likely need to notify all identifiable beneficiaries.
In addition, due to the relatively short deadlines and filing requirements involved in complying with this new law, Executors could potentially be faced with a significant increase in the time, trouble, and expense associated with administering a testate estate. A qualified Georgia probate law attorney can help Executors ensure that they are complying with this new notice requirement, as well as with any other legal duties and responsibilities incumbent on Executors. If you would like to discuss a probate-related matter, please call us at (678) 720-0750 or e-mail us at firstname.lastname@example.org. We look forward to meeting you!