As an Atlanta estate lawyer, I get a lot of calls from heirs complaining that the personal representative (a.k.a. executor or administrator) refuses to disclose any information to them. Usually, the caller is unaware that the law in Georgia is very lenient on executors and administrators with respect to their duty to report. By default an executor and administrator is required to file an inventory with the probate court within 6 months of her appointment and an annual return not later than 60 days after the first anniversary of the appointment, and then annually thereafter until the estate is closed.
It’s difficult enough for an heir to have to wait an entire year to receive a report on an estate. Still, each individual heir can waive his right to receive a copy of the inventory and return, and all of the heirs can consent unanimously to the waiver of the personal representative’s obligation to file an inventory and returns with the court at any time. It’s surprising to me how often heirs do this. Also, a Will can relieve the executor from the inventory and return filing obligations regardless of what the heirs wish to happen.
When this happens, the personal representative typically believes she has no obligation whatsoever to make any kind of report of information to the heirs at any time. When an heir asks her about the status of the estate, the heir often gets the following response: “I don’t have to tell you anything. You’ll just have to wait until the estate is settled.” That’s when I get called, and that’s when I get to tell the heir the personal representative is probably wrong.
The waivers almost always are a point of confusion among the heirs, and with good reason. O.C.G.A. § 53-7-68 and 53-7-69 address the annual return waiver, but those particular statutes are somewhat ambiguous. The statutes say in one place that the heirs (by unanimous consent) or a Will may waive the personal representative’s requirement to file annual returns with beneficiaries or with the court or both. The statutes then say that a waiver of the obligation to file an annual return with the court “shall also relieve the personal representative from sending a copy of the return to the beneficiaries.” The latter part of the statute doesn’t make much sense. If the personal representative is relieved of having to file an annual return with the court, then she obviously does not have to send a copy to the beneficiaries because there is nothing to copy in the first place. The latter part is what is known as a tautology – a needless repetition of what it obvious from the context.
An almost identical statute applies to an inventory waiver in a Will, but oddly the statute applicable to inventory waivers by heirs simply states the heirs “may authorize the probate court to relieve the personal representative of the duty to make inventory” without any reference to the court, heirs, or “both.” That particular clause seems to be a complete waiver of the obligation to make an inventory to anyone.
To make matters worse, Georgia courts have provided a standard consent form for heirs to sign that provides for the waiver of the inventory and annual return filing obligation, and the form does its best to confuse the matter. It reads:
“The Personal Representative is required by law to file reports (Inventory and Returns) and provide a copy to each interested party. By initialing here I agree that the Personal Representative should not be required to file any reports.”
Most heirs I get calls from believe that, by initialing this provision in the form, they have signed away their right to an accounting from the personal representative, partly because the personal representative believes this too and told them so, but partly because the language in the form doesn’t clarify that waiver of the court-filing obligation is not waiver of the obligation to report to the heirs.
So is a personal representative obligated to disclose information about an estate to the heirs, even where a waiver has occurred? The short answer is “yes.” That does not mean it is always easy to get the information. Part II of this blog entry will discuss why a personal representative must report to the heirs despite a waiver, and the rare circumstances she does not. In the meantime, if you are an heir having trouble getting information about an estate, or if you are a personal representative with questions about your reporting duties, please email me or call me at my Atlanta probate law firm at 404-467-8613 to discuss.
[…] I wrote in my previous post, O.C.G.A. § 53-7-68 and § 53-7-69 provide for a waiver of the personal representative’s […]