Does a person named in a will in Georgia to be the Executor of a will have to take the oath of office as Executor from a Probate Judge before they can perform any duties of an Executor?
Estate Planning Attorney
Yes, an Executor has to have had the Will admitted to probate, taken the oath, and have been issued Letters Testamentary by the probate court judge before he or she is able to take any official actions. Until that time, he or she is only nominated, NOT actually the Executor.
This answer is not intended to provide you with specific legal advice regarding your situation, or to create any attorney-client relationship. The intent is only to provide general information. You should be aware that you cannot rely on this answer to provide you with any protection against tax penalties. You should always consult your own attorney in order to obtain legal advice.
The executor will need to file a petition to probate the will, which notifies all of the heirs of the existence of the will and gives any interested party the chance to file an objection. If all of the heirs are on board from the get-go, they can sign an acknowledgment which allows the will to be probated much more quickly. If no objections are filed, the Petition is granted. If an objection is filed, a hearing will be held on the objection. If the objections are denied after a hearing, the petition is granted. After the petition is granted, the executor is issued an oath by the probate court. As to what powers are given to the executor, these are set forth in the will. Unless the will waives the need for the executor to post a bond, the executor will need to post a bond in an amount equal to the stated value of the assets of the estate, less real estate (which stands for itself). The executor will then need to abide by the terms of the will, and may need to file periodic accountings with the probate court.
I see many cases where all parties are in agreement, and a will can be probated easily without the need for an attorney. However, if there are any complications, or if there are any provisions of the will which are not crystal clear, you need to at least sit down with a probate attorney to get educated on what needs to be done or hire them to assist you to make sure it is right. An executor can be held personally liable to the other heirs if they do something wrong, intentionally or not.
The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP firstname.lastname@example.org 53 W. Candler St. Or 718 Oak St. Winder, Ga. 30680 Gainesville, Georgia (770) 307-4899 (770) 538-0555 gadebtlaw.com hicksmasseyandgardner.com serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation
Technically, the Executor named in the Will but not yet sworn in by the Court CAN take actions that are beneficial to the Estate. Assuming the Executor intends to file a Petition to probate the Will of the deceased person, the powers he has once appointed Executor by the Court are said to "relate back" to the actions he took before his formal appointment as Executor.
But whether it is advisable for the Executor to act before having taken the oath of office is another question, one that is dependent on the family situation and whether a caveat is expected.
Preferably, the Executor would be formally appointed by the Court by filing a Petition to Probate the Will and following the process outlined by earlier contributors, and take the Oath of Office before acting on behalf of the Estate. That said, if Estate property currently facing risk of loss because it is unsecured, an individual who has been nominated Executor could act to secure that property.
Best of luck with your situation.
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Divorce / Separation Lawyer
Yes, until the named Executor files a probate petition, and the petition is approved by the court, and Letters Testamentary issues, he is NOT yet the executor and has no authority. I should add that this should only be done with a lawyer's help.
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