In a previous blog post, I discussed reimbursement of attorney’s fees for people acting on behalf of an estate in both general code terms with O.C.G.A. § 53-7-45 and in a more specific example in the case of Estes v. Collum. In this blog post, we will discuss the reimbursement of attorney’s fees directly from a personal representative rather than from estate funds.
Attorney’s fees can be recovered directly from an estate’s personal representative in cases in which that representative is acting in bad faith (for their own personal interest rather than the interest of the estate). An example of one such case is In re Estate of Zeigler. In Zeigler, the executor of an estate did not want a house belonging to the estate to be transferred to the beneficiary who rightfully should have received it according to the deceased’s will. Therefore, the executrix made arrangements for the house to be sold to her friend, giving her friend a check in the amount of $65,000 for the purchase price. The purchase price was considerably lower than the house’s market value of $88,000. The buyer then paid the $65,000 back to the executor, which she deposited into her personal bank account. The executor had also filed sought a continuance of a hearing on a petition for her removal in order give her time to complete the house sale. The beneficiary’s attorney threatened legal action against the executor, who then had title to the home transferred back into the estate.
The court finally heard and granted the petition for the executor’s removal. The beneficiary then filed a petition for damages based on the executor’s breach of fiduciary duty in conducting a sham house sale against the provisions of the will and causing the court to continue the hearing on her removal so she could close the sale. (To learn more about breach of fiduciary duty, read my previous blog post here.) The beneficiary recovered compensatory damages for lost rents that could have been generated by the house, general damages resulting from the executor’s fraud, and punitive damages due to the executor’s breach of fiduciary duty. In addition to these damages, the executor was ordered to pay the beneficiary’s attorney’s fees, pursuant to O.C.G.A. § 13-6-11, which allows that “an estate beneficiary may recover expenses of litigation from an executor who has acted in bad faith.”
If you would like to a personal representative who you believe is acting in bad faith or recovering attorney’s fees for actions taken in an estate, please email me or call my Atlanta probate firm at (404) 445-7771.
