2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 6 - Administrators and Personal Representatives
Article 7 - Compensation
§ 53-6-60. Amount

1. Personal representatives shall be compensated as specified in either the will or any written agreement entered into prior to the decedent's death or a written agreement signed by all the beneficiaries of a testate estate or all the heirs of an intestate estate. A written agreement between a testator and a personal representative shall be valid and binding upon the estate of the testator as fully and completely as if set forth in and made a part of the will.
2. If the personal representative's compensation is not specified in the will or any separate written agreement, the personal representative for services rendered shall be entitled to compensation equal to:
   1. Two and one-half percent commission on all sums of money received by the personal representative on account of the estate, except on money loaned by and repaid to the personal representative, and 2 1/2 percent commission on all sums paid out by the personal representative, either for debts, legacies, or distributive shares;
   2. Ten percent commission on the amount of interest made if, during the course of administration, the personal representative shall receive interest on money loaned by the personal representative in that capacity and shall include the same on the return to the probate court so as to become chargeable therewith as a part of the corpus of the estate;
   3. Reasonable compensation, as determined in the discretion of the probate court and after such notice, if any, as the court shall direct, for the delivery over of property in kind, not exceeding 3 percent of the appraised value and, in cases where there has been no appraisal, not over 3 percent of the fair value as found by the judge, irrespective of whether delivery over in kind is made pursuant to proceedings for that purpose in the probate court and irrespective of whether the property, except money, is tangible or intangible, personal or real; and
   4. In the discretion of the probate court, compensation for working land for the benefit of the parties in interest in no case exceeding 10 percent of the annual income of the property so managed.
3. Whenever any portion of the dividends, interest, or rents payable to a personal representative is required by law of the United States or other governmental unit to be withheld by the person paying the same for income tax purposes, the amount so withheld shall be deemed to have been collected by the personal representative.
4. Unless the will or written agreement specifies otherwise, where some or all of the estate passes through the hands of several personal representatives by reason of the death, removal, or resignation of the first qualified personal representative, or otherwise, the estate shall not be subject to diminution by charges of commission of each successive personal representative holding and receiving in the same right but rather commissions for receiving the estate shall be paid to the first personal representative who receives the property for the benefit of the estate or that person's representative, and commissions for paying out shall be paid to the personal representative who actually distributes the fund, and no commissions shall be paid for handing over the fund to a successor personal representative. If there is more than one personal representative serving simultaneously, the division of the compensation allowed them shall be according to the services rendered by each.
5. Unless the will or written agreement specifies otherwise, a personal representative is entitled to receive commissions on debts, legacies, and distributive shares paid to that personal representative in the same manner as commissions to which the personal representative would be entitled under the terms of the will or written agreement or applicable law on such items paid to others; provided, however, a personal representative shall not be entitled to any commissions for any sums paid to any personal representative of the estate as commissions or other compensation.
6. Personal representatives who fail to make annual returns as required by law shall forfeit all commissions for transactions during the year within which no return is made unless the probate court, upon cause shown, shall by special order entered on the minutes relieve them from the forfeiture.
7. A personal representative may renounce the right to all or any part of the compensation to which the personal representative is entitled under this Code section.

(Code 1981, §53-6-60, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 17; Ga. L. 1998, p. 1586, § 27.)

- For article on the problems and benefits of multiple fiduciaries in estate planning, see 33 Mercer L. Rev. 355 (1981). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

This section consolidates the provisions of former OCGA Sec. 53-6-1(b) and Secs. 53-6-140 through -146. Subsection (a) of this Code section mirrors the provisions for compensation of trustees set forth in OCGA Sec. 53-12-173 and repeals the requirement of former Sec. 53-6-1(b) that the compensation not exceed the legal rate unless the personal representative has a regular, published schedule of fees. This subsection also clarifies that a testator may specify compensation in the will, that any individual may enter into an agreement as to compensation prior to death, and that beneficiaries or heirs may enter into an agreement after the death of the decedent. Subsection (b) provides for the specific commissions and compensation allowed under the former law.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-1101 and former O.C.G.A. §§ 53-6-140,53-6-142, and53-6-143 are included in the annotations for this Code section.

- Under O.C.G.A. § 53-6-60(b), the executor's commission is 2.5 percent of all funds received by the estate and 2.5 percent of all funds paid out of the estate; such commission on the amounts flowing through the estate are the executor's as a matter of statutory right. In re Estate of Sims, 259 Ga. App. 786, 578 S.E.2d 498 (2003).

- As the probate court appointed an administrator to serve as such over the sister's estate, the administrator's compensation was controlled by O.C.G.A. § 53-6-60 (b), and thus, the appeals court was not persuaded otherwise by the administrator's claims that the decedent's will mandated hourly compensation and that a prior administrator was compensated on an hourly basis. Ray v. Nat'l Health Investors, Inc., 280 Ga. App. 44, 633 S.E.2d 388 (2006).

- Executor may waive the executor's statutory commission under O.C.G.A. § 53-6-60(g), but a mere statement that the executor's commissions are waived is not sufficient to waive the statutory right; to bind the executor to a waiver of the executor's rights to a commission, there must be a binding contract with consideration. In re Estate of Sims, 259 Ga. App. 786, 578 S.E.2d 498 (2003).

- An administrator was not entitled to the payment of a commission on a previously paid commission. Sams v. Leskanic, 220 Ga. App. 202, 469 S.E.2d 703 (1996) (decided under former O.C.G.A. § 53-6-140).

- Administrator was entitled to a commission on a sum disbursed to the administrator as extra compensation. Sams v. Leskanic, 220 Ga. App. 202, 469 S.E.2d 703 (1996) (decided under former O.C.G.A. § 53-6-140).

- Co-executor's participation in a prior settlement which resulted in a transfer of real property to beneficiaries, in the co-executor's individual capacity as a beneficiary, was conduct which showed the co-executor's assent by presumption or implication to the decree of title to the property in the beneficiaries; thus, the co-executor was not entitled to a commission for subsequent actions related to the property. Baggett v. Baggett, 270 Ga. App. 619, 608 S.E.2d 688 (2004) (decided under former O.C.G.A. § 53-6-140).

Guardian's claim for commission upon final distribution of deceased ward's estate was not barred by the application of O.C.G.A. § 29-2-43, applying to situations where a guardian has resigned, died, or been removed, or by former O.C.G.A. § 53-6-142 which does not apply to guardians. In re Estate of Donald, 222 Ga. App. 355, 474 S.E.2d 251 (1996) (decided under former O.C.G.A. §§ 53-6-140,53-6-142).

- Trial court correctly concluded that questions of fact remained as to whether a trustee collected excessive executor's fees under O.C.G.A. § 53-6-60 because the record showed that the $425,000 the trustee collected in executor's fees for the administration of the estate was based on calculations by accountants; however, the beneficiary presented evidence that the trustee may have miscalculated the earned commission under § 53-6-60 in excess of $184,307. Hasty v. Castleberry, 293 Ga. 727, 749 S.E.2d 676 (2013).

- Probate court order removing an executor for cause was affirmed because the executor violated the executor's fiduciary duty in numerous ways by failing to dissolve the estate business, using estate property and funds for the executor's own benefit and to pay personal bills, overpaying executor's fees, and having a conflict of interest by continuing to operate the business despite the estate losing money but personally benefiting by using the business property rent free. Myers v. Myers, 297 Ga. 490, 775 S.E.2d 145 (2015).

- In an appeal from an order of the probate court denying an executor's petition for compensation under former O.C.G.A. § 53-6-143, the superior court's judgment holding that the commission allow as compensation two and one half percent of the value of the property delivered in kind but not setting forth the property's value, was not final, as no final award of compensation was made, and the executor was required to follow interlocutory appeal procedures. Clark v. Davis, 242 Ga. App. 425, 530 S.E.2d 49 (2000) (decided under former O.C.G.A. § 53-6-143).

Cited in DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980); In re Estate of Dasher, 259 Ga. App. 201, 575 S.E.2d 921 (2002).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. §§ 53-6-140 and53-6-141 are included in the annotations for this Code section.

- Commission authorized by former O.C.G.A. § 53-6-140 was not in addition to the ten percent commission that an administrator or an executor was entitled to under former O.C.G.A. § 53-6-141 on money loaned by the decedent or by one as administrator or executor because former O.C.G.A. § 53-6-140 exempted a commission on money loaned by and repaid to an administrator, executor, trustee, or guardian. 1987 Op. Att'y Gen. No. U87-26 (decided under former O.C.G.A. § 53-6-140).

- Municipal bonds and certificates of deposit, but not stocks, constitute "money loaned" within the meaning of former O.C.G.A. § 53-6-141. 1987 Op. Att'y Gen. No. U87-26 (decided under former O.C.G.A. § 53-6-141).

10 Am. Jur. Pleading and Practice Forms, Executors and Administrators, § 364.