Revised Probate Code of 1998
William J. Self, II, Judge
Probate Court of Bibb County
Several changes under the new Probate Code applicable to Petitions for Discharge (formerly Petitions for Dismission) merit the attention of all probate practitioners and those who only occasionally represent clients in probate matters. In this brief article, I will seek to bring these to the attention of the members of the Macon Bar, in hopes that members will take these into account when advising clients and when filing probate proceedings.
First, Discharge and Resignation are covered in Article 5 of the new Probate Code (O.C.G.A. §§53-7-50 et seq.) to which there were certain amendments during the 1998 Legislative Session. I will apply the amended provisions to this discussion. Most of you will know that, under the old law, all that was required when a petition for dismission was filed was the publication of a citation in the legal organ, once each week for four weeks. Recognizing that publication seldom provides any actual notice to interested parties, the new law seeks to address the due process concerns of the Probate Code Revision Committee.
Under the new law, upon the filing of a petition for discharge from office and all liability, citation must be issued to all heirs of an intestate estate or all beneficiaries of a testate estate and to all creditors whose claims remain unpaid or are disputed. The notice provisions of Chapter 11 of the new law apply, which means that there must be personal service on all heirs or beneficiaries who are residents of Georgia, service by certified or registered mail on all heirs or beneficiaries who reside at known addresses outside Georgia, and service by publication on heirs or beneficiaries who are unknown or whose addresses are unknown. The same service provisions apply to creditors whose claims are disputed or whose claims have not been paid in full. In all cases, the citation must be published one time, not less than ten days prior to the deadline for filing objections
What this means is that, now, there will be actual service or notice to the heirs or beneficiaries and any unpaid creditors that the personal representative is seeking discharge. Any heir, beneficiary or unpaid creditor who does not acknowledge service of the petition for discharge must be served notice under Chapter 11. Since the new law applies to all proceedings filed after January 1, 1998, these provisions will apply to petitions for discharge filed now even for executors or administrators appointed under the old law. This has come as a surprise to and has caused some consternation for attorneys filing petitions for discharge since the first of the year.
H.B. 1226, passed during the 1998 Session, added a provision to Section 53-7-50 which states that it shall not be necessary to notify (1) any heir or beneficiary who has relieved the personal representative of all liability or (2) any heir or beneficiary with respect to whom the personal representative has been relieved of further liability in a probate court proceeding [i.e., a settlement of accounts under §§53-7-60, et seq., or an intermediate report under §§53-7-73, et seq.]. As I understand it, the intent of the first part of the added provision is to allow a personal representative to receive from any heir or beneficiary a writing releasing the personal representative from liability to that particular heir or beneficiary which would be filed with the petition for discharge as evidence that notice is not required as to such heir or beneficiary.
In my opinion, this requirement might best be met by counsel preparing for personal representatives a form which both acknowledges receipt of a particular bequest or share of an estate delivered or paid over by the personal representative and relieves the personal representative from any further liability to the signing heir or beneficiary. To comply with the requirements of Chapter 11, the signature of the heir or beneficiary on such a receipt and release must be notarized. One might create a generic form which could be used and acceptable in most cases, but a specific form might be necessary in any particular case. Attorneys should note that the writing must relieve the personal representative "of all liability" [emphasis added], and I think this must be clearly stated in the writing. In other words, if an item under a will gave "my grand piano to my daughter, Jane," a writing from Jane which simply acknowledges having received the piano, with no acknowledgment that Jane has no further interest in the estate, will not be sufficient. However, a writing in which Jane acknowledges receipt of the piano AND relieves the executor from all further liability with regard to Jane's interest in the estate of the deceased, executed before a notary public, should be sufficient to avoid the necessity of notice to Jane when the petition for discharge is filed.
I also think that a practice of obtaining written relief from liability will be most important and quite helpful in estates where there are numerous bequests and/or when the estate is likely to remain open for a considerable length of time. Personal representatives (and the attorneys who advise them) might find it very time consuming and, perhaps, difficult to have to go back and get acknowledgments of service (for the petition for discharge) from heirs or beneficiaries months or years after the bequest or share has been delivered or paid out. And, the provision with reference to beneficiaries applies to every beneficiary of every kind: the estranged child to whom the testator left the sum of $1.00; the "faithful servant" to whom the testator left "all my personal clothing"; the church, synagogue, temple or other organization to which the testator left a charitable bequest; etc. Remember that every beneficiary from whom a relief from liability or an acknowledgment of service has not been received must be served with notice of the petition for discharge.
Perhaps of some help in certain cases, H.B. 1226 also added a provision allowing a personal representative to petition the court solely for discharge from office, as opposed to discharge from office AND all liability, in which case no notice other than the one-time publication is required, EXCEPT as to creditors whose claims have not been paid (to whom notice will be given by first-class mail). A Georgia Probate Court Standard Form for this limited discharge has not yet been prepared, and, until one is prepared and approved, modification of the regular discharge form would be required. It is unclear to me what benefit one might gain from being discharged solely from office or how long the potential liability hangs over the head of the personal representative discharged from office only, but perhaps use of this limited discharge might be appropriately considered in those cases (many in number, I am sure) where the personal representative actually "fully performed" several years ago but just never before sought discharge.
Another matter regarding discharge has caused some concern in the local Bar. New Georgia Probate Court Standard Form 33, the Petition for Discharge, states that the notice to debtors and creditors required under O.C.G.A. §53-7-41 must have been published as required, with the last publication being at least three months prior to the filing of the petition for discharge. Section 41 states: "Every personal representative shall within 60 days from the date of qualification give notice by publication, as described in Chapter 11 of this title, for creditors of the estate to render an account of their demands." [Emphasis added] In order to be eligible for discharge, a personal representative must have complied with this provision. In my opinion, any former local practice of advising the publication of notice to debtors and creditors as a matter of discretion should yield to a practice of advising strict compliance with the statute and maintaining proof of compliance (a copy of the ad) for filing with the petition for discharge.
One final note: HB 1226 provides for all references to the old probate law to be cited as the "Pre-1998 Probate Code" and for all references to the new probate law to be cited as the "Revised Probate Code of 1998."