Failure to File a Will In Probate Court In Georgia

by Stephanie Reid
Executors are required to take an oath, promising to comply with the law when administering the estate.

Executors are required to take an oath, promising to comply with the law when administering the estate.

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If you are named as executor in a will in Georgia, you have a duty to follow the procedures outlined in the Georgia code, which include promptly filing the will with the probate court. If you fail to fulfill your role as executor, you could be liable if beneficiaries are financially harmed by your delay -- and you may lose your right to serve as executor. Therefore, it is in your own best interests, as well as in the best interests of the beneficiaries, to avoid delay and file the will as promptly as possible following the death of the will maker, known as the testator.

Deadline to File a Will

Under Georgia law, you are required to file the will as soon as possible following the testator’s death. If you refuse to file the will as required by Georgia statute, the law allows any interested party to file the will, including a creditor of the estate. If you believe that you were named as the executor in a will, but the original document was lost, stolen or destroyed, you may be able to admit a certified copy of the will if the original witnesses to its signing are available to testify and verify as to truth and authenticity of the copy. You can often obtain a copy of an original will from the attorney who assisted the deceased in preparing the will.

Removal as Executor

At a minimum, failure to file the will with the probate court could result in your expulsion as executor. If you are removed as executor, you will be unable to oversee the distribution of assets belonging to the deceased -- and will be powerless during the estate administration process. In addition, the probate court could permit a non-relative creditor of the estate to serve as the estate administrator.

Criminal Penalties

You could face criminal, contempt-of-court penalties for failing to file a will in probate court. Provided you know where the will is located, Georgia law permits a judge to issue sanctions in the form of criminal fines and jail time if the will is not delivered to the court. As of 2014, the Georgia criminal code classifies contempt of court as a misdemeanor and allows the probate judge to issue a fine up to $500 and a jail sentence not to exceed 20 days.

Civil Penalties

As an executor, you have a fiduciary duty to the estate and its beneficiaries. This means that you are under an obligation to conduct business in a reasonable manner and in the financial best interests of all involved. If you cause unnecessary delays in the estate administration process, resulting in financial harm to the estate or those set to collect, you could face personal liability for your role in the setback. While it is unlikely that you will be held personally liable for good faith mistakes or honest delays, intentional refusal to file a will with the Georgia probate court could result in a personal lawsuit against you by the testator’s beneficiaries.