Who Can Serve As a Personal Representative In Georgia?

The basic requirements for serving as a personal representative in Georgia probate is that the personal representative must be:

  • At least 18 years old, and
  • Of sound mind

 

These basic requirements to serve as a personal representative in Georgia are found at Ga. Code §§ 53-1-2 and 53-6-1.

What Is the Difference Between a Personal Representative, an Executor, and an Administrator In Georgia Probate?

A personal representative, executor, and administrator are all fiduciaries of a Georgia estate.  The particular term used depends on whether the Georgia estate is testate (the decedent had a valid will under Georgia law) or intestate (the decedent did not have a valid will).

An “Administrator” under the Georgia Probate Code means any person appointed and qualified to administer an intestate estate, including an intestate estate already partially administered by an administrator and from any cause unrepresented.  Ga. Code § 53-1-2(1).

An “Administrator with the will annexed” means any person, other than an executor, appointed and qualified to administer a testate estate, including a testate estate already partially administered and from any cause unrepresented. Ga. Code § 53-1-2(2).

An “Executor” means any person nominated in a will who has qualified to administer a testate estate in Georgia, including a person nominated as alternative or successor executor. Ga. Code § 53-1-2(7).

A “Personal representative” means any administrator, administrator with the will annexed, county administrator, or executor of a Georgia estate.  Ga. § 53-1-2(12).  Thus, the term “personal representative” is a catch-all used to describe basically any estate fiduciary in the Georgia probate court.

Who Has the Right To Serve As an Executor In Georgia?

While no one has the absolute right to serve as an executor in Georgia (remember, an executor has to be at least 18 and of sound mind), unless adjudged unfit, nominated executors under the testator’s will shall have the right to qualify to serve as executor in the order set out in the will.  GA Code § 53-6-10.

Who Has Priority To Serve As Administrator Of a Georgia Estate?

An administrator of an intestate Georgia estate may be unanimously selected by all the heirs of the deceased.  GA Code § 53-6-20. When no unanimous selection is made, the Georgia probate court shall make the appointment that will best serve the interests of the estate, considering the following order of preference:

  1. The surviving spouse, unless an action for divorce or separate maintenance was pending between the deceased intestate and the surviving spouse at the time of death;
  2. One or more other heirs of the intestate or the person selected by the majority in interest of them;
  3. Any other eligible person;
  4. Any creditor of the estate; or
  5.  The county administrator.

 

Is There a Deadline To Qualify To Serve as Personal Representative In Georgia?

90 days.  Section 53-6-11(a) of the Georgia Probate Code states:

If the nominated executor does not qualify within 90 days after the order admitting the will to probate is entered or is proved to be dead or incapacitated or renounces the right to serve, the next nominated executor in the order set out in the will may qualify. If the next nominated executor fails to qualify within 90 days after the expiration of the time period by which the first nominated executor must qualify or is proved to be dead or incapacitated or renounces the right to serve, any nominated executor may qualify. If no nominated executor appears to qualify within a reasonable time or if there is no other executor named in the will, the estate shall be deemed to be unrepresented.

A nominated executor who fails to qualify within the 90 day time period is deemed to have declined the right to serve as executor.  This declination does not preclude the nominated executor from qualifying to serve as executor or administrator with the will annexed at a later time.

Do You Have To Serve as Executor If You Are Nominated In the Will?

No.  A nominated executor may decline in writing to serve as executor.  GA Code § 53-6-12.  Serving as an executor, administrator, or personal representative is work, and not everyone wants to do it or has the time to do it.  See How Much Does a Personal Representative Get Paid In Georgia?

Can an Out-of-State Resident Serve as Personal Representative In Georgia?

Yes.  An out-of-state resident can serve as a personal representative in Georgia.  However, it is usually easier and more cost efficient to appoint an executor who is local so that day-to-day matters are more easily dealt with.

Your Georgia probate lawyer can help you navigate your role as personal representative.

General Probate Issues