Who Handles the Estate if the Named Executor is Unavailable or Incapacitated?
Full Question:
Answer:
When the named executor is unable to serve, it is possible to petition the court to appoint a representative. Please see the following GA statutes:
53-6-11. (a) If the nominated executor does not qualify within 90 days
after. . . .
(a) 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.
(b) A nominated executor who fails to qualify within the time period
set out in subsection (a) of this Code section is deemed to have
declined the right to serve as executor; provided, however, that this
declination does not preclude the nominated executor from qualifying to
serve as executor or administrator with the will annexed at a later
time.
53-6-13. (Revised Probate Code of 1998) Unless another nominated executor
qualifies within the time provided. . . .
Unless another nominated executor qualifies within the time provided in
Code Section 53-6-11, the probate court shall appoint an administrator
with the will annexed of a testate estate when:
(1) No executor is nominated in the will;
(2) The nominated executor has not reached the age of majority, to
serve until the disability ceases;
(3) The executor dies, resigns, or otherwise becomes disqualified to
serve; or
(4) A testate estate is unrepresented for any other reason.
53-6-15. (a) Every petition for letters of administration with the will.
. . .
(a) Every petition for letters of administration with the will annexed
shall be made in accordance with the procedures set forth in Code Section
53-5-21 if the will has not yet been admitted to probate and shall
include a prayer for issuance of letters of administration with the will
annexed. The petition shall set forth the names, addresses, and ages or
majority status of the beneficiaries who are capable of expressing a
choice, as defined in subsection (a) of Code Section 53-6-14, and the
circumstances giving rise to the need for an administrator with the will
annexed. The petition shall be served on the beneficiaries of the will
who are capable of expressing a choice in the manner described in Chapter
11 of this title. If the petition for letters of administration with the
will annexed is based upon the expiration of a reasonable time for any
nominated executor to qualify, any nominated executor who has failed to
qualify shall also be served.
(b) If the will has been admitted to probate, the petition for letters
of administration with the will annexed shall set forth the names,
addresses, and ages or majority status of the beneficiaries who are
capable of expressing a choice, as described in subsection (a) of Code
Section 53-6-14, the date on which the will was admitted to probate,
and the circumstances giving rise to the need for an administrator with
the will annexed. The petition shall be served on the beneficiaries of
the will and the executor, if any, of any deceased executor whose death
created the vacancy in the manner described in Chapter 11 of this
title.
(c) In the case of an estate partially administered and unrepresented
because of the death of the previous executor, the judge shall determine
whether the interest of the first estate and the persons interested in
the first estate will be best served by the appointment of an
administrator with the will annexed or the executor, if any, appointed
under the will of the deceased previous executor.
53-5-21. (Revised Probate Code of 1998) (a) A will may be proved in
solemn form after due notice, upon the. . . . [EDITORS' NOTE: THERE IS
CURRENTLY 1 OTHER
SECTION WITH THIS NUMBER; FOLLOW THE LINK TO RETRIEVE ITS TEXT. 53-5-21
(Pre-1998 Probate Code).]
(a) A will may be proved in solemn form after due notice, upon the
testimony of all the witnesses in life and within the jurisdiction of the
court, or by proof of their signatures and that of the testator as
provided in Code Section 53-5-23. The testimony of only one witness shall
be required to prove the will in solemn form if no caveat is filed. If a
will is self-proved, compliance with signature requirements and other
requirements of execution is presumed subject to rebuttal without the
necessity of the testimony of any witness upon filing the will and
affidavit annexed or attached thereto.
(b) The petition to probate a will in solemn form shall set forth the
full name, the place of domicile, and the date of death of the testator;
the mailing address of the petitioner; the names, ages or majority
status, and addresses of the surviving spouse and of all the other
heirs, stating their relationship to the testator; and whether, to the
knowledge of the petitioner, any other proceedings with respect to the
probate of another purported will of the testator are pending in this
state and, if so, the names and addresses of the propounders and the
names, addresses, and ages or majority status of the beneficiaries under
the other purported will. In the event full particulars are lacking, the
petition shall state the reasons for any omission. The petition shall
conclude with a prayer for issuance of letters testamentary. If all of
the heirs acknowledge service of the petition and notice and shall in
their acknowledgment assent thereto, and if there are no other
proceedings pending in this state with respect to the probate of another
purported will of the decedent, the will may be probated and letters
thereupon may issue without further delay.