We Help Families
Plan For & Protect
Their Legacies

Who Controls The Assets Of A Deceased Loved One?

Thompson Mungo Firm Oct. 26, 2022

When a loved one passes away, dealing with the financial affairs of their estate can be overwhelming, daunting, and stressful. Many families try to name a family member as their preferred executor in their Will—but that can put that family member at risk if there is a conflict of interest during grieving. 

The law in Georgia is very clear about who controls the estate or the assets if a loved one dies in Georgia.

The Executor: With a Will

The executor is the person who has control over the assets of a person who died with a last will and testament.

The executor is the person who has been nominated by a deceased person to handle the administration and settlement of their estate under the authorization granted by the probate court. Executors are individuals named in a will and are given the job of taking care of the estate and distributing it to the right beneficiaries in accordance with the terms of the Will. (GA. Code Ann. § 53-5-2)

The Administrator: Without a Will

The administrator is known as the person who has control over the assets of a person who died without a last will and testament or when the person(s) named in a Will is unable or refuses to serve.

The administrator is appointed by the probate court to manage the estate of a deceased person.  

GA. Code Ann. § 53-6-50  says that the probate court will choose the person who will best serve the interests of the estate based on the following list of preferences:

  • Spouse (unless the couple was going through a divorce when the death happened)

  • he person/s chosen by the majority of the heirs

  • any other eligible person

  • any creditor of the estate

  • The county administrator

The Personal Representative (Executor or Administrator)

The personal representative must take an oath to perform their duties in full compliance with the law before they can receive the authority to handle the estate. The documentation evidencing the personal representative authority to administer the estate is the:

  • "Letters of Testamentary" for the executor

  • "Letters of Administration" for the administrator.

The probate court issues these documents.

The Duties and Power of Personal Representatives:

1.Gathering all the assets.

The personal representative is responsible for finding, identifying, and taking possession of all the deceased person's assets.

2 Kinds of Assets

A. Probate Assets are properties that are personally owned by the deceased person and are in their sole name. These assets are not jointly owned and don't have beneficiary designations. These assets may include stocks or bonds, bank or investment accounts, real estate, vehicles, artworks, furniture, jewelry, machines.

B. Non-Probate Assets are properties that are not required to go through the probate process. These assets may be:

  • Jointly owned assets such as bank or brokerage accounts and real property

  • Accounts with Beneficiary Designations like life insurance and retirement accounts.

  • Trust Assets

2. Selling the Assets (If Necessary)

The Personal Representative may have the authority to sell, rent, and lease the property to pay for the costs of settling the estate, paying off the deceased person's debts, and paying their taxes. Sometimes, the assets are sold so the heirs can get a better share of the estate. The selling of the property must be in:

  • Following the terms of the Will.

  • Granted by the law.

  • Granted by blanket order of the court at the time of the appointment or a later date.

  • Granted by the court on a petition concerning a specific property.

3. Paying all Debts and Taxes

The Personal Representative will pay creditors. All debts and taxes must be paid to creditors before the assets are distributed and divided among the heirs.

4. Distributing the Estate to Heirs to Beneficiaries

After the personal representative has settled and paid all expenses, debts, and taxes, all the remaining assets will be distributed to the estate's heirs. 

When there's a Will, it will be distributed according to what is written in the Will. When there's no Will, the assets will be distributed according to the laws of intestacy in the State of Georgia.

5. Filing of Report to The Probate Court

Every personal representative must maintain thorough and accurate records throughout the administration of the estate until they are released. The two common reports delivered to the court are the Estate Inventory and Annual Reports Return.

6. Closing the Estate

The Personal Representative may file a Petition of Discharge after completing the estate administration. The court then will review the reports submitted by the personal representative to see if the estate has been administered correctly and if the personal representative has faithfully fulfilled all his duty. If the court is satisfied with the results, the court will issue the Order of Discharge to close the estate formally. It also terminates any further requirement of filing returns, discharges the Personal Representative from office, and surety on the personal representative's bond from liability, if any.

Punishments for Violations of the Personal Representative:

Executor De Son Tort Punishment

If someone acts like a Personal Representative before being appointed by the court, they could be held responsible for any damage they cause to the estate. These people are not trying to help or promote the best interests of anyone involved with the estate or its assets. They are acting maliciously in this case.

According to OCGA 53-6-2, any person who is not appointed as the executor or administrator and unlawfully interferes with selling or converting of a deceased person's property is treated as executor de son tort. This person is liable to creditors, heirs, or beneficiaries and has to pay twice the value of the property wrongfully taken from the estate of a deceased person, even if there was no actual loss. The legal executor of the estate can also sue this person to recover possession of the property and force that person to account for profits made from using the property.

Personal Representative Punishment

Suppose the legal Personal Representative has not faithfully administered the estate following the Will or the law of the estate of Georgia and has not acted in the estate's best interest. In that case, the personal representative may face the following consequence:

  1. The court can order the executor to pay money to compensate for the damage to the estate's finances.

  2. The court has the authority to remove the executor and appoint a replacement.

  3. The court may reduce or deny the executor's compensation.

  4. If the executor refuses to fulfill an obligation, the court may order them to do so.

  5. The court may prohibit the executor from carrying out a particular action on behalf of the estate.

You're probably handling the estate for the first time as the chosen executor or administrator, so hiring an experienced and skillful probate lawyer will help and guide you throughout the process. By doing this, you avoid costly mistakes. The Thompson Mungo Firm has a great team to assist you in administering an estate. Call us today to schedule an appointment.