Legal Question in Wills and Trusts in Georgia

There is no such thing as a power of attorney of a will. And while a will can name a criminal as executor, a testator would be foolish to consider anyone who shows an inability to comply with the law.

Powers of attorney are for the living and allow another person to manage someone else's property while that person who owns the property (be it land or anything else) while the person is alive. Wills govern the disposition of property once the person dies.

With regard to powers of attorney, nothing in the statute sets forth any qualifiers as to who can be an agent. I would wonder why a person is making someone with a criminal background power of attorney, but even criminals have mothers. I guess the question would be (a) could someone else object and (b) what is the nature of the crime? If it was for drinking a beer while underage, that would not be a big deal if the agent is now 50 and has led an exemplary life. Being convicted of more serious offenses or financial crimes would be problematic though.

With regard to wills, the statute below says the testator can pick anyone but the executor has to qualify and says that the person named in the will can serve unless deemed unfit.

I have not researched the caselaw but having a criminal record may make one unfit. Some states like NC put qualifiers on this in that felons cannot serve. So the type of prior convictions may have some bearing on this. Any financial crime (theft, fraud and the like) would probably disqualify someone.

OCGA � 53-6-10. Nomination by testator

(a) No formal words are necessary for the nomination of an executor. An expression by the testator of a desire that the person carry into effect the testator's wishes shall amount to a nomination as executor.

(b) Unless adjudged unfit, nominated executors shall have the right to qualify in the order set out in the will.

(c) An individual who has not reached the age of majority may be nominated as an executor but may not qualify until reaching the age of majority.

(d) If the will names a person to fill a vacancy in the office of executor or provides a method of selecting a personal representative to fill the vacancy, any vacancy shall be filled or selection made as provided in the will.