When someone passes away, the executor of the estate (known in Georgia as the personal representative) is responsible for managing the deceased person’s affairs. This includes initiating the probate process, filing the will, locating and managing assets, notifying creditors, paying debts and taxes, and distributing remaining estate assets to beneficiaries according to the will. As a fiduciary, they must follow state laws and can be held personally liable for mismanagement.
If the deceased left a will, they’ll usually nominate an executor, although the probate court has to approve the appointment. Although most personal representatives discharge their duties faithfully, others can make mistakes or act in their own self-interest. In this guide, we’ll review when you can sue the executor of someone’s estate and how an estate planning attorney can help you resolve the situation.
What an Executor Is Required to Do Under Georgia Law
In Georgia, an executor serves as the estate’s personal representative under court authority. That authority comes from Letters Testamentary and applies only to estate-related actions. State law treats this role as a fiduciary position, meaning the executor must place the estate’s interests above personal interests at all times.
Their responsibilities include:
- Collecting and Securing Estate Assets: The estate executor must identify and take control of all probate assets owned at death, including bank accounts, real estate, vehicles, and personal property. These assets must be protected from loss, theft, or misuse during administration.
- Inventory Management: Executors must file an inventory of estate property with the probate court unless the will waives that requirement or the court relieves the executor of the duty. Interested parties may request access to the inventory through the probate court.
- Paying Debts and Expenses in Proper Order: The estate executor must pay funeral expenses, administrative costs, taxes, and valid creditor claims before making distributions to beneficiaries.
- Maintaining Complete Financial Records: Every transaction involving estate property must be documented. This includes deposits, withdrawals, sales, and professional fees.
- Asset Distribution According to the Will: After debts, taxes, and administration expenses are satisfied, the executor must distribute the remaining estate assets in accordance with the will and Georgia probate law. Courts treat unauthorized or unequal distribution of assets as grounds for removal or financial judgment.
When an executor ignores or mismanages these obligations, the law provides an avenue for estate beneficiaries and heirs to demand legal compliance or pursue consequences.
Legal Grounds for Suing an Executor in Georgia
Certain actions or omissions provide legal grounds for suing an executor. They include:
- Misuse of Estate Funds: Executors may use estate money only for approved estate expenses. Paying personal bills, transferring estate funds to personal accounts, or taking estate property without authority violates fiduciary duties. Courts treat these acts of asset theft as direct financial harm to the estate and may order repayment from the executor’s personal assets.
- Failure to Identify or Secure Assets: An executor must locate and safeguard all probate property. Leaving real estate uninsured, failing to secure valuables, or ignoring known bank accounts exposes the estate to loss. When property disappears or loses value because it wasn’t protected, the executor may be personally liable.
- Failure to Prepare or Disclose Required Records: State law requires executors to maintain records showing all receipts and disbursements. Executors must maintain complete records of all estate receipts and disbursements. If an interested party believes the executor is not properly accounting for estate activity, they may petition the probate court to require a formal accounting or settlement of accounts. Probate judges may order formal accountings and impose penalties if records can’t be produced.
- Unequal or Unauthorized Distributions: Executors must distribute property exactly as the will or intestacy law requires. Making unequal or premature distributions that are not authorized by the will, that prejudice other beneficiaries, or that leave the estate unable to pay expenses or creditors may constitute a breach of fiduciary duty.
- Improper Payment Of Executor Fees Or Expenses: Requesting excessive fees or charging personal expenses to the estate reduces the amount left available to estate beneficiaries. If this happens, the probate court may order repayment and reduce or deny executor compensation entirely.
Does Suing an Executor Mean Filing a Lawsuit in Georgia?
In Georgia, legal action against an executor usually starts in probate court and not in a separate civil lawsuit. Probate courts supervise estate administration from appointment through discharge, so they have authority to control executor conduct.
The most common way to challenge an executor is by filing a petition in the probate court handling the estate. These petitions ask the judge to order the executor to act, explain their conduct and decisions, or correct errors. Examples include petitions to require an inventory of assets, force a settlement of accounts, or remove the executor for misconduct.
Note: Some disputes support a separate civil lawsuit, such as fraud, conversion, or breach of contract. In some cases, separate claims such as fraud or conversion may be brought in superior court, but probate court generally retains primary authority over the administration and supervision of the personal representative. Courts review these cases closely to avoid duplicating probate court authority.
Who Has the Legal Right to Sue an Executor in Georgia?
Only those with a direct financial interest in the estate can bring a claim against it should a breach of fiduciary duty occur. They include:
- Beneficiaries Named In The Will: A beneficiary named in a valid Georgia will has standing to challenge an executor’s conduct. That standing exists because the executor controls the property the beneficiary is entitled to receive. If they delay distributions, indulge in asset misappropriation, or pay unauthorized expenses, a beneficiary may petition the probate court for relief.
- Creditors With Approved Claims: Creditors with properly filed claims may seek relief in the probate court if estate assets are distributed before valid debts are paid or if the personal representative fails to follow Georgia’s statutory claims process. An executor who distributes assets before paying valid debts may expose the estate to loss. In those cases, a creditor may ask the probate court to enforce payment rules.
- Successor Personal Representatives: A newly appointed executor may pursue claims against a former executor. This happens when misconduct is discovered after removal or resignation. Georgia courts allow successor representatives to recover losses on behalf of the estate.
Family members who are neither estate beneficiaries nor heirs don’t have standing. Suspicion or personal disagreement with the executor isn’t enough to support a lawsuit: the probate court needs proof of a legal interest tied to estate property. This requirement prevents it from becoming a forum for personal disputes unrelated to estate rights.
What a Georgia Probate Court Can Order Against an Executor
When an executor commits a breach of fiduciary duty, the court can issue binding orders to correct the problem and address any financial loss. This includes:
- Removal of the Executor: A probate judge may remove an executor for legal cause, such as misuse of estate assets, refusal to follow court orders, or failure to perform fiduciary duties. The court then appoints a successor personal representative to take control of the estate.
- Revocation of Letters Testamentary: Revoking Letters Testamentary strips the executor of authority to act for the estate. Once revoked, any further action by the former executor has no legal effect.
- Court-Ordered Settlement of Accounts: Probate courts can order an executor to file a settlement showing every dollar received and spent. The settlement must include financial statements, receipts, and explanations for each transaction. If the executor can’t justify payments, the court may treat them as unauthorized.
- Surcharge and Money Judgments: A surcharge is a personal money judgment against the executor for losses caused by misconduct. This may include missing funds, improper fees, or unauthorized distributions. The executor must repay the amount from personal assets, not estate property.
- Denial or Reduction of Executor Compensation: Georgia law allows courts to reduce or deny executor compensation when they fail to honor their fiduciary duties. An executor who mishandles funds or ignores obligations may lose the right to be paid.
What To Do If You Suspect Executor Misconduct
If an executor’s actions raise concern and you have standing to file a lawsuit, take the following steps:
- Gather Court and Financial Records: Start by obtaining copies of the will, Letters Testamentary, and all probate filings. Collect bank statements, closing documents, property records, and any written communication from the executor. These records establish what the executor was authorized to do and how they violated their legal responsibilities.
- Document Timelines and Missing Information: Create a written timeline showing key dates, such as appointments, asset sales, payments, and periods of inactivity. Note missing inventories, unexplained withdrawals, or delayed distributions. Courts rely on timelines to evaluate neglect and unreasonable delay.
- Make A Written Request for Information: Send a clear written request asking for specific records or explanations. These requests should identify the documents sought and set a reasonable response time.
- File the Appropriate Probate Court Petition: Georgia probate courts can provide remedies for executor misconduct. They include petitions to require a settlement of accounts, revoke Letters Testamentary, or impose financial liability.
- Act Before Discharge Occurs: Once the personal representative is formally discharged by the probate court, it may become much more difficult to reopen the estate or pursue claims for misconduct, so concerns should be raised before discharge occurs. Raising concerns before discharge preserves the court’s authority to order repayment or removal. Waiting too long can limit available remedies.
- Consult A Georgia Probate Attorney: Probate disputes involve statutory filing deadlines, evidentiary rules, and court-specific procedures, so hiring legal counsel is strongly recommended. An experienced estate litigation attorney can confirm whether you have a viable claim and guide you toward a resolution.
What If There Was No Will?
When someone dies without a will in Georgia, the estate is handled under Georgia’s intestacy law. The probate court appoints an administrator instead of an executor, but the legal duties are nearly identical. The administrator serves as the estate’s personal representative under probate court supervision and must comply with Georgia’s statutory duties, including inventory and accounting requirements unless relieved by the court.
The administrator’s authority comes from Letters of Administration issued by the probate court. Those letters limit actions to estate business only and require compliance with statutory duties. Acting outside that authority exposes the administrator to removal and financial liability.
Beneficiaries and heirs in intestate estates may challenge an administrator in the same way they would challenge an executor. Probate courts can require inventories, order settlements of accounts, revoke Letters of Administration, and enter surcharge judgments. The absence of a will does not reduce court oversight or weaken enforcement.
Questions? Speak to an Atlanta Estate Litigation Lawyer Today
Probate courts supervise estate administration from appointment through discharge and enforce fiduciary duties through removal, repayment orders, and fee reductions. When an executor mishandles assets, delays administration, or ignores court obligations, probate judges have the authority to step in.
At Brightside Lawyers, our estate planning lawyers advise beneficiaries, heirs, and families dealing with executor misconduct in Georgia estates. We can review probate records, identify violations of fiduciary duties, and prepare targeted probate court petitions to address misuse of estate assets and administrative failures. If you believe an executor has crossed the line during the probate process, contact Brightside Lawyers to discuss your situation and determine what legal action you should take. Call our office or fill out our online contact form to schedule an initial consultation.