Who Is the Fiduciary of an Estate in Georgia?
After someone dies, questions about their estate can quickly add to an already stressful time. You may wonder who the estate’s fiduciary is, who has authority over the deceased’s property, and whether that person is handling it properly.
In Georgia, serving as an estate fiduciary comes with significant legal duties and accountability. Keep reading to find out who can take on this role, what is expected of them, and what you can do when those duties are not fulfilled.
Who Is Considered an Estate Fiduciary?
An estate fiduciary is a person or entity entrusted with managing someone else’s financial affairs, property, or legal matters.
Fiduciaries are expected to act in the best interests of the people they represent, not use their authority for personal benefit.
Who serves as a fiduciary depends on the circumstances. Different people may serve in the role at different times, each with authority over specific property or decisions.
Personal representative (Executor/Administrator)
After someone’s death, the estate personal representative handles a deceased person’s estate. In Georgia, an executor typically fills this role when named in a valid will.
If there is no will, or no executor is available to serve, the probate court may appoint an administrator.
The appropriate Letters give the personal representative authority and legal responsibilities to begin managing the deceased person’s estate assets.
From that point forward, their job is to preserve the estate’s value and handle its property with care. Decisions should also consider the rights of beneficiaries and others with a legal interest in the estate.
Trustee
A trustee is a person or organization (for example, a bank or trust company) responsible for managing property and money transferred into a trust for the benefit of others.
Unlike a personal representative, whose authority focuses on administering a deceased person’s probate estate, a trustee manages assets under the terms of the trust.
A trustee’s responsibilities depend on the terms of the trust and state law. They may need to sell or invest trust property, keep track of financial transactions, pay taxes, or distribute trust assets to beneficiaries.
Some trusts are settled soon after the creator’s death. Others continue for years, leaving the trustee responsible for the property until the trust document allows distribution.
Guardian/Conservator
A guardian may be appointed when someone cannot make certain decisions for themselves. A conservator has a different role: to manage that person’s property or money. Both roles come with duties, responsibilities, and limits on what the appointed person may do.
In a probate estate, when a minor child or a dependent adult inherits property or money, a conservator may be responsible for handling that inheritance.
Georgia’s estate administration statute specifically recognizes circumstances in which a duly acting guardian or conservator may act on behalf of an heir or beneficiary.
Attorney-in-Fact (Durable Power of Attorney)
An attorney-in-fact, sometimes called an agent, is a person authorized through a Power of Attorney to act for another individual, known as the principal. Depending on the authority granted in the document, the attorney-in-fact may be able to manage the principal’s financial, business, or other personal matters.
A POA ends when the principal dies. At that point, authority over the deceased person’s probate estate generally passes to the properly appointed personal representative.
Understanding these distinctions matters because the term fiduciary describes a legal relationship of trust, not a specific job.
An executor, administrator, trustee, guardian, conservator, or attorney-in-fact may have fiduciary responsibilities, but the scope of their authority differs.
What Does Fiduciary of an Intestate Estate Mean?
When someone dies without a valid will, the probate court may appoint an administrator to handle the deceased person’s estate.
The administrator doesn’t decide who inherits or what their shares are. Georgia’s intestacy law answers that question. The administrator is legally obligated to identify the legal heirs, gather
and protect the estate assets, pay the outstanding debts, and distribute the remaining property according to the shares provided by law.
Serving in this position also means putting the estate ahead of personal interests. The administrator is required to safeguard the estate’s assets, pay valid obligations, and handle distributions properly until the estate can be closed.
Role and Duties of Estate Fiduciaries
Taking control of someone else’s property comes with limits. An estate fiduciary cannot simply make decisions based on what seems convenient or personally beneficial.
Every decision involving estate money or property must be made with the fiduciary role in mind.
For a Georgia personal representative, this means managing the estate, preserving its value, and respecting the legal rights of the deceased person’s family members and beneficiaries.
The responsibilities of an estate fiduciary generally include, but are not limited to, the following core duties:
Duty of loyalty
The duty of loyalty requires an estate fiduciary to put the interests of the estate and its beneficiaries or heirs ahead of personal interests.
A fiduciary should not use estate property or their position for personal gain, favor one interested party over another, or engage in transactions that create a conflict of interest.
For a Georgia personal representative, the duty of loyalty requires that, when beneficiaries have competing interests, decisions about estate property distribution follow the will and Georgia law rather than the representative’s personal preferences or relationships.
Duty of care
Under the duty of care, a fiduciary must manage estate property and assets responsibly and make reasonable, informed decisions throughout the administration process.
This may involve identifying and protecting assets, maintaining property, keeping estate funds separate, paying valid debts and estate taxes, preserving financial records, and making appropriate distributions.
A fiduciary should take reasonable steps to preserve the estate’s value rather than allowing assets to be lost, wasted, or unnecessarily reduced.
Duty of full disclosure
In general, the duty of disclosure requires estate fiduciaries to provide the necessary information about the administration of the estate. This responsibility allows beneficiaries, heirs, and, when applicable, the court to understand how estate property has been handled.
Depending on the circumstances, they should show what came into the estate, what was paid out, how property was handled, and what was distributed.
When an accounting or other disclosure is required, those records help show what the fiduciary did with the estate’s assets. A fiduciary is expected not to hide important information or misrepresent how they have managed estate property.
Responsibilities of Estate Fiduciaries in Georgia
An estate fiduciary’s responsibilities depend on the role they hold and the estate’s circumstances.
In Georgia, the personal representative’s primary responsibility is to manage and settle the estate properly while protecting its value and the rights of heirs, beneficiaries, creditors, and other interested parties.
Georgia estate administration
As the personal representative of an estate, the executor or administrator oversees the estate from the beginning of the probate process through its final settlement.
This may include identifying interested parties, collecting and safeguarding the decedent’s assets, reviewing financial records, paying estate expenses, debts, and taxes, keeping financial records, and completing other steps required to settle the estate.
Gathering and protecting assets
One of the fiduciary’s first responsibilities is to gather and protect the estate assets. These may include:
- Identify bank accounts and other financial accounts.
- Locate real estate, vehicles, investments, and other assets owned by the deceased.
- Appraise real estate, jewelry, art, and other personal belongings.
- Maintain the insurance policies when necessary.
- Take other reasonable measures to prevent estate assets from being lost, damaged, or unnecessarily devalued.
Asset distribution
Before distributing estate property, the fiduciary must ensure the estate’s obligations have been properly satisfied.
Once the fiduciary pays all creditor claims, estate expenses, and taxes, they transfer the remaining assets to the appropriate beneficiaries under the will or, if there is no valid will, to the legal heirs under Georgia intestacy law.
Complying with court rules
One of an estate fiduciary’s main responsibilities is complying with applicable Georgia probate laws and court requirements.
Depending on the deceased person’s estate and the authority granted to the personal representative, this may involve:
- Filing required petitions.
- Inventories.
- Estate tax returns.
- Accountings, notices, or other documents with the probate court.
This list includes some key responsibilities of an estate personal representative, but it is not exhaustive.
If you are an estate personal representative or a deceased’s heir or beneficiary, speaking with an experienced probate attorney may help you better understand your rights and responsibilities.
When Are Fiduciaries Held Personally Liable?
Estate fiduciaries have significant authority, but it comes with legal accountability. In Georgia, a personal representative may face personal liability if a breach of fiduciary duty harms the estate, an heir, or a beneficiary.
Problems may arise, for example, when a fiduciary:
- Uses estate money or property for personal use.
- Misappropriates or improperly transfers estate assets.
- Allows estate assets to be damaged or lost through improper management.
- Engages in self-dealing or improper conflicts of interest.
- Makes unauthorized or improper distributions.
- Conceals important information or transactions.
- Participates in or knowingly allows another personal representative to breach a fiduciary duty.
Georgia law gives beneficiaries named in a will and heirs of an intestate estate legal options when a personal representative, trustee, or other fiduciary violates their duty, or is about to.
Depending on the situation, available remedies can include recovering damages, compelling the fiduciary to perform required duties, or seeking other appropriate court relief.
Moreover, serious misconduct may also lead to other consequences, including removal from the fiduciary role.
Can Fiduciaries Be Changed or Removed?
Yes. In Georgia, the probate court may change or remove a fiduciary for good reason.
An heir, beneficiary, creditor, or other person with an interest in the estate may petition the probate court when there are concerns about how the personal representative is performing their duties.
If the court finds good cause after investigating, it has broad authority to protect the estate. This may include revoking the fiduciary’s letters, requiring additional security, ordering an accounting, or imposing another appropriate remedy.
Removal may be appropriate when a fiduciary mismanages estate property, uses assets for personal benefit, has a serious conflict of interest, fails to perform required duties, or otherwise breaches a fiduciary obligation.
Georgia law provides several remedies when a fiduciary breaches their duties. Sometimes, the court may remove the fiduciary and appoint another personal representative or temporary administrator to handle the estate.
Other times, the court may also reduce or deny the fiduciary’s compensation or order other relief needed to protect the estate and its beneficiaries.
Does an Executor Have a Fiduciary Duty to Beneficiaries?
Yes. Once appointed as the estate’s personal representative, an executor or administrator has a fiduciary duty to the estate’s beneficiaries. This means using the authority granted by the will and/or Georgia law to administer the estate properly while protecting the interests of the beneficiaries or heirs.
A personal representative’s fiduciary duties generally include:
- Protecting estate assets from loss, damage, or misuse.
- Keeping estate and personal property separate, including estate funds.
- Maintaining accurate records of estate assets, expenses, transactions, and distributions.
- Paying valid debts, taxes, and estate expenses before making any distribution of the remaining property.
- Distributing the decedent’s estate according to the will and applicable Georgia law.
- Treating beneficiaries fairly and respecting their respective legal rights.
- Avoiding conflicts of interest, self-dealing, or using estate property for personal benefit.
- Providing required information and accountings concerning the administration of the estate.
However, a personal representative’s fiduciary duty does not require following every request made by a beneficiary.
The personal representative must follow the will, Georgia probate law, and applicable court orders while considering the rights of everyone with a legal interest in the estate.
Next Step
Serving as an estate fiduciary in Georgia involves important legal duties that can affect the estate, beneficiaries, and heirs. Mistakes or breaches of duty may lead to disputes or personal liability.
If you have questions about your rights or responsibilities, contact our office at (770) 920 6030 or schedule a consultation with one of our team members.
