Legal Question in Wills and Trusts in Georgia

I am the executor of mother's estate. . Will waived all inventories, accounting, bond, etc. I applied for and received a Final Order relieving me of personal liability. I closed the estate account and mailed checks to the beneficiaries in the percentages stated in the Will. Now, one beneficiary refuses to cash check! It's been 30 days. My suspicion is that they don't like the statutory fees I was paid. Should I advise court of their refusal to accept? Will they forfeit the bequest? What should I do?

Asked on 7/31/13, 6:27 am

2 Answers from Attorneys

Glen Ashman Ashman Law Office
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This is why you needed a lawyer. You do not ever apply to close an estate until everything is done. Do not call the court. Get a lawyer. You may have to reopen the estate.

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7/31/13, 7:44 am
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The need to post a bond and file an inventory can be waived by a will. I don't see how a final accounting can be waived though. See OCGA 53-7-50. Petition by personal representative for discharge; citation and publication; hearing; subsequently discovered estate

(a) 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.

(b)(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 notify 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.

(c) 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.

(d) 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 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.

(e) 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 giving 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..

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Had you done this properly, you would have filed the petition or obtained releases from the beneficiaries. If the beneficiary objected, they would have been required to file written objection. If nothing was done, then the court or clerk would review the accounting and if all was in order grant you a final order. You would then send the checks to the beneficiaries and if one did not cash the check his share would escheat to the state or be turned over to the clerk of court to hold. See OCGA 53-2-51. Procedure for Escheat:

(a) If no person has appeared and claimed to be an heir within four years from the date letters of any kind on an intestate decedent's estate were granted, the personal representative shall petition the probate court of the county in which the letters were granted for determination that property has escheated to the state. Such a petition shall set forth the full name of the decedent, the date of death, the fact that no person has appeared and claimed to be an heir, and the property of the estate which may have escheated to the state.

(b) Upon filing of the petition, the probate court shall issue a citation as provided Chapter 11 of this title, requiring the heirs, if any, to file any objection to the petition by a date that is at least 60 days from the date of the citation, and shall order notice by publication to all heirs of the decedent as provided in Code Section 53-11-4.

(c) If no individual files objection as an heir who is entitled to the property on or before the date set in the citation, the court shall order the property to be paid over and distributed to the county board of education to become a part of the educational fund.

(d) If an individual files objection as an heir who is entitled to property, such claim shall be tried as other actions before the court. In such case, no property shall be paid over or distributed to the county board of education until the claim is determined in such manner as to establish that any individual making the claim is not entitled to the property.

(e) When property is paid over or distributed to a county board of education, the administration of the estate shall be terminated following a final return and the granting of a petition for discharge.

(f) The proceedings shall be conclusive upon and shall bind all the heirs of the estate.

(g) All expenses incurred in the administration of such proceedings shall be paid from the property or proceeds of the estate.

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You can also possibly get an order just discharging you from being the executor but leaving the estate open.

I would now get a consult with a probate lawyer who practices in the county where the estate was pending. Since you never filed an accounting I don't see how a beneficiary would have waived the chance to object but that is what you need to find out. Ask (1) whether the beneficiary has waived any objections or (2) whether you need to re-open the estate and file proper documents; or (3) whether you need to re-open the estate and bring some kind of proceeding so that the share of the recalcitrant heir can be turned over to the court. The beneficiary can then claim it or not but it will not be your problem.

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7/31/13, 10:42 pm

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