2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 7 - Administration of Estates Generally
Article 5 - Discharge and Resignation
§ 53-7-55. (For Effective Date, See note.) Revocation of Letters of Personal Representative or Other Sanctions

1. Upon the petition of any person having an interest in the estate or whenever it appears to the probate court that good cause may exist to revoke the letters of a personal representative or impose other sanctions, the court shall cite the personal representative to answer to the charge. Upon investigation, the court may, in the court's discretion:
   1. Revoke the personal representative's letters;
   2. Require additional security;
   3. Require the personal representative to appear and submit to a settlement of accounts following the procedure set forth in Article 6 of this chapter, regardless of whether the personal representative has first resigned or been removed and regardless of whether a successor fiduciary has been appointed; or
   4. Issue such other order as in the court's judgment is appropriate under the circumstances of the case.
2. In any proceeding brought pursuant to this Code section, service of notice shall be made in the manner provided by Chapter 11 of this title.

(Code 1981, §53-7-55, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2020, p. 377, § 1-46/HB 865.)

- For survey article on wills, trusts, guardianships, and fiduciary administration for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003).

This section carries forward the provisions of former OCGA Sec. 53-7-148.

ANALYSIS

• General Consideration
• Mismanagement Generally
• Remedies
• Discretionary Power of Probate Court or Jury
• Jurisdiction

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Laws 1821, Cobb's 1851 Digest, p. 321, former Code 1863, § 2474, former Code 1868, § 2472, former Code 1873, § 2511, former Code 1882, § 2511, former Civil Code 1895, § 3402, former Civil Code 1910, § 3978, former Code 1933, § 113-1229, and former O.C.G.A. § 53-7-148 are included in the annotations for this Code section.

Statute is applicable to executors as well as administrators. Bruce v. Fogarty, 53 Ga. App. 443, 186 S.E. 463 (1936); McLendon v. McLendon, 96 Ga. App. 197, 99 S.E.2d 489 (1957) (decided under former Code 1933, § 113-1229).

An administrator cannot be allowed to violate the public law of the state in the management of the estate entrusted to the administrator, and then be heard to say that such violation of the law was for the benefit of that estate, when called on to show cause why the administrator's letters of administration should not be revoked. Lokey v. Lokey, 82 Ga. App. 171, 60 S.E.2d 569 (1950) (decided under former Code 1933, § 113-1229).

Word "unfit," as used in this statute, is not limited to physical, mental, or moral conditions, but is sufficiently broad to include a legal disqualification under the will or otherwise. Bruce v. Fogarty, 53 Ga. App. 443, 186 S.E. 463 (1936) (decided under former Code 1933, § 113-1229).

- When it appears that, under a previous adjudication of this court, the administrator is entitled to hold and manage the estate, without accounting to the legatee under a will, until the happening of a certain contingency, which the petition reveals has not occurred, an accounting and final settlement would be premature in the absence of a removal of the administrator. Hoffman v. Chester, 204 Ga. 296, 49 S.E.2d 760 (1948) (decided under former Code 1933, § 113-1229).

- There was no abuse of discretion in the probate court's removal of an administrator based on findings that the administrator failed to file timely and proper annual returns. In re Estate of Jackson, 241 Ga. App. 392, 526 S.E.2d 884 (1999).

Cited in Hall v. Carter, 8 Ga. 388 (1850); Whiddon v. Williams & Co., 98 Ga. 310, 24 S.E. 437 (1896); Zipperer v. LaRoche, 145 Ga. 829, 90 S.E. 40 (1916); Stanley v. Spell, 46 Ga. App. 91, 166 S.E. 669 (1932); Goodwyn v. Veal, 50 Ga. App. 657, 179 S.E. 126 (1935); Ballard v. Zachry, 54 Ga. App. 101, 187 S.E. 139 (1936); Maddox v. Waldrop, 60 Ga. App. 702, 4 S.E.2d 684 (1939); Beecher v. Carter, 189 Ga. 234, 5 S.E.2d 648 (1939); Robinson v. Georgia Sav. Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939); Astin v. Carden, 194 Ga. 758, 22 S.E.2d 481 (1942); Bowen v. Bowen, 200 Ga. 572, 37 S.E.2d 797 (1946); Jue v. Joe, 207 Ga. 119, 60 S.E.2d 442 (1950); Gill v. Gill, 211 Ga. 567, 87 S.E.2d 389 (1955); Conkle v. Babb, 93 Ga. App. 405, 91 S.E.2d 789 (1956); Fuller v. Fuller, 217 Ga. 691, 124 S.E.2d 741 (1962); Saffold v. Cheatham, 221 Ga. 155, 143 S.E.2d 629 (1965); Shackelford v. Whatley, 172 Ga. App. 127, 322 S.E.2d 331 (1984); Pitts v. Attaway, 259 Ga. 455, 384 S.E.2d 629 (1989).

An allegation of insolvency of the executor is a substantial factor for consideration when there are specific allegations showing danger of loss to persons interested in the estate, but an allegation of insolvency, standing alone, is insufficient to authorize a court of equity to interfere in the administration of an estate. The ordinary (now probate judge) has ample authority to investigate charges that an executor is mismanaging an estate, and to require the executor to give bond or to remove the person as executor. Gaines v. Johnson, 216 Ga. 668, 119 S.E.2d 28 (1961) (decided under former Code 1933, § 113-1229).

While failure to make returns as required by law may be cause for removing an executor, it is not a compulsory ground for so doing, but one within the discretion of the court. Holsenbeck v. Arnold, 75 Ga. App. 311, 43 S.E.2d 348 (1947) (decided under former Code 1933, § 113-1229).

Failure of an executor or guardian to make returns is an omission of duty, and therefore a breach of trust, and throws on the executor or guardian the burden of proving to the satisfaction of the court and jury that the executor or guardian has discharged the duty of the trust with fidelity. Holsenbeck v. Arnold, 75 Ga. App. 311, 43 S.E.2d 348 (1947) (decided under former Code 1933, § 113-1229).

In a proceeding by a legatee against an executor for an accounting, before the ordinary (now probate judge) under former Code 1933, § 113-2201, the ordinary (or the superior court on appeal) is authorized to remove such executor when it appears that the executor has without authority used property in the executor's hands, in a joint venture or partnership in which the executor in the executor's individual right is interested, and when, without authority, the executor is shown to have held as speculation property or crops which it was the executor's duty under the law to sell. This is true, even though such venture or speculation does not result in loss to the beneficiary, the law being that as to such a trust this relationship must not be assumed and no such risk be taken, unless authorized by the will. Perdue v. McKenzie, 194 Ga. 356, 21 S.E.2d 705 (1942) (decided under former Code 1933, § 113-1229).

- 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).

- Statute does not require an ordinary (now probate judge), or a jury in the judge's stead to remove the administrator when, though admittedly there were certain violations of the law, no loss is claimed to have resulted to the estate, and when no accounting is sought. Lokey v. Lokey, 82 Ga. App. 171, 60 S.E.2d 569 (1950) (decided under former Code 1933, § 113-1229).

Remedies

Suit on bond of administrator as remedy for fraud.

- When the heirs allege that the administrator of the estate is guilty of fraud and collusion with respect to the sale of property, and that a receiver should be appointed to reclaim and resell the property, but the heirs do not want to prevent the ultimate sale of the property, the question is merely one of damage resulting from an alleged breach of duty by the administrator. In this case, the administrator's bond as administrator would furnish an adequate remedy to the heirs, since they could not possibly be in such danger of loss or injury as to require either a receivership or an injunction for the protection of their interests. Conner v. Yawn, 200 Ga. 500, 37 S.E.2d 541 (1946) (decided under former Code 1933, § 113-1229).

When, in a suit against an administrator and another for the appointment of a receiver and other equitable relief, it appears from the pleadings and evidence that the heirs of an estate may obtain adequate protection and redress in the court of ordinary (now probate court) as to each complaint against an administrator in reference to the estate of the intestate, the heirs do not present a proper case for the appointment of a receiver for such estate or for injunction since a suit on the administrator's bond is an adequate remedy at law. Conner v. Yawn, 200 Ga. 500, 37 S.E.2d 541 (1946) (decided under former Code 1933, § 113-1229).

If a bond is not sufficient to protect any interested party, the ordinary (now probate judge) has authority, upon proper application, to increase the bond, revoke the letters of administration, or pass such other order as may in the party's judgment be expedient under the circumstances of the case. Furr v. Jordan, 196 Ga. 862, 27 S.E.2d 861 (1943) (decided under former Code 1933, § 113-1229).

- While, as provided in law after the administrator has been appointed and has taken charge of the estate, upon proof that the administrator wastes or in any manner mismanages the estate or for any reason the administrator is unfit for the trust reposed in the administrator, the ordinary (now probate judge) may in the ordinary's discretion revoke the letters of administration. The widow, who is legally entitled to the administration, cannot, when she is of sound mind, be denied the appointment upon the mere speculation that she will, on account of lack of business experience and want of capacity to manage the particular estate, mismanage the estate and prove unfit for the trust reposed. Sampson v. Sampson, 44 Ga. App. 803, 163 S.E. 326 (1932) (decided under former Civil Code 1910, § 3978).

- When an executor destroys or attempts to destroy evidence in the executor's possession that would help prove an arguably valid claim against the estate, the probate court does not abuse the court's discretion in removing the executor, particularly when, as here, the executor is the residual beneficiary under the will and thus stands to personally profit from defeat of the claim. In re Estate of Davis, 243 Ga. App. 58, 532 S.E.2d 169 (2000).

Probate court properly revoked letters testamentary, ordered reimbursement to a decedent's estate of excessive expenses, and ordered a settling of the estate's accounts when the decedent's executor committed 17 breaches of fiduciary duty, including failing to wind up the estate and failing to provide the decedent's other child with an accounting. Fowler v. Cox, 264 Ga. App. 880, 592 S.E.2d 510 (2003).

Trial court did not abuse the court's discretion under O.C.G.A. § 53-7-55(1) in removing the executor as executor of the decedent's estate as the executor did not carry out the duties under O.C.G.A. § 53-7-1(a); the executor did not take control of the assets of the estate, the executor commingled estate funds with the executor's own funds, and the executor sold the decedent's house without obtaining an appraisal or attempting to realize the best price on the open market. In re Estate of Zeigler, 273 Ga. App. 269, 614 S.E.2d 799 (2005).

As the question of the legitimacy of the administrator's transactions was properly before the court, the probate court did not err in addressing it or in granting the relief necessary to protect the estate. Ray v. Nat'l Health Investors, Inc., 280 Ga. App. 44, 633 S.E.2d 388 (2006).

- Trial court erred in removing an executor of an estate based on the executor's failure to appear at a hearing concerning a will beneficiary's request for information; there was no evidence that the executor was on notice that executor's letters testamentary could be revoked for failing to attend the hearing as required by O.C.G.A. § 53-7-55. In re Estate of Zeigler, 259 Ga. App. 807, 578 S.E.2d 519 (2003).

- Probate court properly denied a petition to remove an executor. The assertion rested upon an assertion that a will was void, which had been rejected, and upon an assertion that the estate should be distributed according to an alleged contract between the parties, which the probate court held that the court did not have jurisdiction to consider. In re Estate of Brice, 288 Ga. App. 449, 654 S.E.2d 420 (2007).

Discretionary Power of Probate Court or Jury

Broad discretion.

- Under this statute, the discretion of the ordinary (now probate judge), or a jury acting in the ordinary's stead on appeal to the superior court, is very broad and may be exercised whether the violation of law under consideration is a minor or major "matter," and the court may not in either event withdraw that discretion. Lokey v. Lokey, 82 Ga. App. 171, 60 S.E.2d 569 (1950) (decided under former Code 1933, § 113-1229).

Court may not lawfully tell a jury that they have no right to remove an administrator who is guilty of mismanagement which does not result in any injury to the estate. To do so would be to invade the province of the jury by withdrawing the jury's discretion. Lokey v. Lokey, 82 Ga. App. 171, 60 S.E.2d 569 (1950) (decided under former Code 1933, § 113-1229).

Because removal of an executor was within the jury's discretion but was not mandated, the trial court properly denied the petitioner's motions for directed verdict and judgment n.o.v. following a special verdict finding that the executor should not be removed. Crump v. McDonald, 239 Ga. App. 647, 520 S.E.2d 283 (1999) (decided under former O.C.G.A. § 53-7-148).

Statute furnishes the necessary guidance for the exercise of the ordinary's (now probate judge) or jury's discretion as to remedial measures to be adopted against a negligent or derelict administrator upon consideration of the evidence upon the hearing. An ordinary (now probate judge) or a jury in the ordinary's stead has broad discretion in the premises, and the law does not require an administrator's removal, even if guilty of mismanagement or misconduct, as the only remedial measure. The jury may in the jury's discretion do something else. Lokey v. Lokey, 82 Ga. App. 171, 60 S.E.2d 569 (1950) (decided under former Code 1933, § 113-1229).

Revoking letters of administration is an action that a jury may take or not take in the jury's discretion, and this discretion will not be controlled unless abused. Lokey v. Lokey, 82 Ga. App. 171, 60 S.E.2d 569 (1950) (decided under former Code 1933, § 113-1229).

When an administrator has been guilty of a violation of the law in the management of an estate, but the administrator's act has not resulted in any loss to the estate, the jury could still remove the administrator. Lokey v. Lokey, 82 Ga. App. 171, 60 S.E.2d 569 (1950) (decided under former Code 1933, § 113-1229).

Even if the jury found some derelictions of the administrator to be "minor matters" the jury might regard them as presaging more serious infractions, and having found such violations of the law might, in their discretion, remove the administrator. Lokey v. Lokey, 82 Ga. App. 171, 60 S.E.2d 569 (1950) (decided under former Code 1933, § 113-1229).

When the findings and conclusions of the probate court established that a former spouse's marital status was not correctly stated in the former spouse's application for letters of administration, and that this incorrect information was a material factor in the issuance of those letters, it was not an abuse of discretion to remove the spouse as administrator of the deceased's estate. In re Estate of Dunn, 236 Ga. App. 211, 511 S.E.2d 575 (1999) (decided under former O.C.G.A. § 53-7-148).

- Trial court did not err in dismissing purported beneficiary's complaint alleging that executors breached the fiduciary duties owed to the beneficiary by wasting the assets of the parents' estates and failing to distribute assets to the beneficiary because the claims would be more properly heard by the probate court which had original and exclusive jurisdiction over such matters; the probate court was equipped to handle such claims and had the authority to grant the relief requested, if necessary. Benefield v. Martin, 276 Ga. App. 130, 622 S.E.2d 469 (2005).

- When decedent's 89-year-old parent did not comprehend the duties and responsibilities of an executor and may have been acting in a manner detrimental to the estate, the probate court acted within the court's discretion in removing the parent as coexecutor. Nesmith v. Pierce, 226 Ga. App. 851, 487 S.E.2d 687 (1997) (decided under former O.C.G.A. § 53-7-148).

Probate court did not abuse the court's discretion by removing all four siblings as co-executors because there was eminent distrust on all sides and the situation was untenable, thus, good cause existed for the removal order. In re Estate of Hubert, 325 Ga. App. 276, 750 S.E.2d 511 (2013).

- On appeal to the superior court after a finding adverse to the petitioner on the issue of the administrator's unfitness by the ordinary (now probate judge), the trial in the superior court is had without reference to the evidence introduced in the former trial, and in such a case the discretion exercised by the ordinary (now probate judge) is transferred to the jury in the superior court. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945) (decided under former Code 1933, § 113-1229).

While former Code 1933, § 113-1101 made the provisions of former Code 1933, § 113-1229 applicable to executors, and by the provisions of § 113-1229, an executor may be removed or required to give additional security - in the exercise of sound discretion by the ordinary (now probate judge) - when it is shown that the ordinary is guilty of waste or mismanagement or that the ordinary is insolvent or, for any reason, the ordinary is unfit for the trust, yet despite this power courts are reluctant to exercise the power when no strong case therefor is shown. And the discretion vested by the statute in the ordinary (now probate judge) is to be exercised by the jury or judge acting as jury on appeal to the superior court. Patterson v. Patterson, 208 Ga. 17, 64 S.E.2d 585 (1951) (decided under former Code 1933, § 113-1229).

Jurisdiction

Revocation powers of probate court.

- For a failure to make "returns as required by law," or for insufficient security, the administrator may be cited in the court of ordinary (now probate court) and the court of ordinary (now probate judge) is vested with full power to revoke the letters of administration, or to pass such order as may be necessary for the protection of interested parties. Hoffman v. Chester, 204 Ga. 296, 49 S.E.2d 760 (1948) (decided under former Code 1933, § 113-1229).

A proceeding for the revocation of letters of administration or letters testamentary may be initiated "whenever the ordinary (now probate judge) knows, or is informed by any person having any interest in the estate," that one or more of the specified conditions exist which will authorize the ordinary (now probate judge) in the ordinary's discretion to revoke the letters; an attorney may convey such information to the ordinary and initiate by a petition the proceeding, resulting in an order of revocation of the letters testamentary by the ordinary (now probate judge), and in an affirmance of such order by the superior court on appeal, even though the attorney may not be a beneficiary under the will or a creditor of the estate, but is merely interested therein on account of a claim for attorney's fees in connection with the probate of the will. Bruce v. Fogarty, 53 Ga. App. 443, 186 S.E. 463 (1936) (decided under former Code 1933, § 113-1229).

When the executor is unfit to handle the estate or there is cause for the executor's removal, plaintiffs have a remedy for such in a court of ordinary (now probate court). Tinsley v. Maddox, 176 Ga. 471, 168 S.E. 297 (1933) (decided under former Civil Code 1910, § 3978).

- It is necessary for the probate court to address any material unresolved factual issues including the question of whether an executor has breached a settlement agreement; since the beneficiary under the will is not seeking to enforce the agreement, but instead to determine whether the executor has breached the agreement, the superior court should not have jurisdiction. Gray v. McKenna, 202 Ga. App. 685, 415 S.E.2d 295 (1992) (decided under former O.C.G.A. § 53-7-148).

- Probate court order removing executor was reversed since the issue upon which the probate court removed the executor already had been decided in the executor's favor by the superior court in a suit alleging fraud and waste. Pitts v. Attaway, 259 Ga. 455, 380 S.E.2d 709 (1989) (decided under former O.C.G.A. § 53-7-148).

- When the testator in a will appoints a person to be the executor only so long as the executor remains a widow, and the executor remarries after qualification as the executor, the court of ordinary (now probate court) has jurisdiction of a petition to revoke the court's letters testamentary on the ground that the executor is no longer qualified under the will. Bruce v. Fogarty, 53 Ga. App. 443, 186 S.E. 463 (1936) (decided under former Code 1933, § 113-1229).

Jurisdiction of the court of ordinary (now probate court) to revoke the letters of executorship, and to require the executor to make an accounting and settlement to the heirs, is limited to the case as one at law. Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957) (decided under former Code 1933, § 113-1229).

- Probate court did not lack jurisdiction to disqualify a wife as the executor of her husband's will probated in common form. Even though it was termed a caveat, the daughter's petition did not challenge the will's validity, but rather merely challenged the wife's ability to serve as executor, which was permitted under O.C.G.A. § 53-7-55. In re Estate of Moriarty, 262 Ga. App. 241, 585 S.E.2d 182 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 275, 278 et seq., 279 et seq., 294 et seq., 356 et seq.

- 33 C.J.S., Executors and Administrators, § 107 et seq.

- Delay of one named as executor and created trustee in setting up trust as declination of or vacancy in trust, or as ground for removal as trustee, 76 A.L.R. 1385.

Allowance out of decedent's estate for costs and attorneys' fees incurred by parties interested in granting or revoking of letters of administration or letters testamentary, 90 A.L.R. 101.

Insolvency of, or appointment of receiver or other liquidator for corporation, as affecting its status as executor, administrator, guardian, or trustee, 102 A.L.R. 124.

Personal interests of executor or administrator adverse to or conflicting with those of other persons interested in estate as ground for revocation of letters or removal, 119 A.L.R. 306.

Requisites of notice and hearing in court proceedings for removal of personal representative, 47 A.L.R.2d 307.

Physical condition as affecting competency to act as executor or administrator, 71 A.L.R.3d 675.

Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation, 96 A.L.R.3d 1102.

Delay of executor or administrator in filing inventory, account, or other report, or in completing administration and distribution of estate, as ground for removal, 33 A.L.R.4th 708.