Compensation of the Conservator is generally addressed at O.C.G.A. § 29-5-50. There, the Code provides:
(a) Other than an emergency conservator or a temporary substitute conservator, a conservator shall be entitled to compensation for services rendered equal to:
(1) Two and one-half percent commission on all sums of money received by the conservator on account of the estate, except on money loaned by and repaid to the conservator, and 2 1/2 percent commission on all sums paid out by the conservator;
(2) An additional commission equal to one-half of 1 percent computed on the market value of the estate as of the last day of the reporting period. This commission shall be proportionately reduced for any reporting period of less than 12 months;
(3) Ten percent commission on the amount of interest earned if it is earned during the course of the conservatorship. The conservator shall receive interest on money loaned by the conservator in that capacity and shall include the interest on the money loaned on the return to the court so as to become chargeable with the interest as a part of the corpus of the estate;
(4) Reasonable compensation, as determined in the discretion of the court and after such notice, if any, as the court shall direct, for the delivery over of property in kind, not exceeding 3 percent of the appraised value and, in cases where there has been no appraisal, not over 3 percent of the fair value as found by the court, irrespective of whether delivery over in kind is made pursuant to proceedings for that purpose in the court and irrespective of whether the property, except money, is tangible or intangible or personal or real; and
(5) In the discretion of the court, compensation for working land for the benefit of the parties in interest, but not to exceed 10 percent of the annual income of the managed property.
Additional Resources
In In re Estate of Miraglia the Court of Appeals affirmed a decision where the Probate Court ordered a conservator to repay $304,835.32 in excess conservator fees. The conservator had taken a 2.5 percent commission on stocks, bonds and real property in addition to the 2.5 percent of “sums of money” allowed under that section. Evaluating the case under prior code section 29-2-42 (which is substantially similar to the new code section), the Court of Appeals held that the statute was in derogation of the common law and must be strictly construed. Since there was no case law interpreting the phrase “all sums of money” in a conservatorship case, the Court looked to Walton v. Gairdner, 111 Ga. 343 (1900) where the Supreme Court interpreted the phrase in the context of executor compensation. There the Court found stocks or bonds are in no sense “sums of money received.” The Court then applied ordinary rules of statutory construction, finding that stocks are not money since they are not a medium of exchange. The decision below was upheld.
Because the Court of Appeals in Miraglia looked to the probate code for guidance, we do so here. In In re Estate of Hubble, 375 Ga. App. 756 (2025), the Court examined a dispute over the compensation due to the administrator of an estate which involved O.C.G.A. § 53-6-60. The Estate sold encumbered property for $803,995.54. The loan payoff was $561,796.81. After paying other closing expenses, the real estate closing attorney, who was not the administrator’s agent as the attorney was paid by the lender, disbursed $242,198.73. The administrator claimed entitlement to a commission based on the gross sale. The Court of Appeals held otherwise. “[T]he plain language of the statute requires the sums to be received or paid out by the personal representative in order to entitle the personal representative to a commission.” Agency arguments did not help because under Georgia law, the closing attorney “acts only as the agent for the client or clients who retained him,” which in this case was the lender. Further, because the administrator, under these circumstances, had no power to make demands regarding the disbursement, arguments regarding constructive receipt failed as well. (It is worth noting the Court explained its argument citing D. Robert Autrey, Jr. PC v. Baker, 228 Ga. App. 396 (1997) in explaining “constructive possession;” in Autrey the Court found an attorney seeking to enforce an attorney lien did not have constructive possession over funds belonging to his client that were in a different attorney’s escrow account; the result arguably would have been different if the closing attorney represented the administrator, seeSimmons v. Flint, Connolly & Walker, 369 Ga. App. 474 (2023) (attorney acts as agent for the client or clients who retained him) and Mikell v. Hortenstine, 334 Ga. App. 621 (2015) (attorney is his client’s agent). SeeGeorgia Rules of Professional Conduct 1.15(II)(b) (other than nominal funds to cover banking expenses, only funds held for a client or third party may be deposited in an IOLTA account; see alsoGRPC 1.15(I)(d)). After rejecting both arguments, the Court held that funds “actually received” by the estate were the net funds.
(b) Whenever any portion of the dividends, interest, or rents payable to a conservator is required by law of the United States or other governmental unit to be withheld by the person paying the same for income tax purposes, the amount withheld shall be deemed to have been collected by the conservator.
(c) Where some or all of the estate passes through the hands of several conservators by reason of the death, removal, or resignation of the first qualified conservator or otherwise, the estate shall not be subject to diminution by charges of commission of each successive conservator holding and receiving in the same right but rather commissions for receiving the estate shall be paid to the first conservator who receives the property for the benefit of the estate or that person’s representative, and commissions for paying out shall be paid to the conservator who actually distributes the fund. No commissions shall be paid for handing over the fund to a successor conservator. If there is more than one conservator serving simultaneously, the division of the compensation allowed each conservator shall be according to the services rendered by each conservator.
(d) A conservator shall not be entitled to a commission for any sums paid to any conservator of the estate as commissions or other compensation.
(e) Conservators who fail to make annual returns as required by law shall forfeit all commission for transactions during the year within which no return is made unless the court, upon cause shown, shall by special order entered on the record, relieve the conservator from the forfeiture.
Additional Resources
In In the Interest of Hudson a conservator’s commission was disallowed commission an entered an Order against the conservator where she had “filed returns containing errors and failed to correct those returns.” Income was underreported by $10,886.24 and $8,954.63 in expenses were unverified. Without approval the conservator had transferred conservatorship funds into her own account. “Based on its findings that the conservator had breached her fiduciary duty by filing erroneous returns, commingling funds, and otherwise mismanaging the account, the court disallowed the commission the conservator had taken of $7,382. The probate court entered judgment against the conservator in the amount of $38,428.27, the sum of the under-reported income, the unverified expenses, the unapproved transfers into her personal account, and the disallowed commission.” The judgment was affirmed.
(f) A conservator may renounce his or her right to all or any part of the compensation to which the conservator is entitled under this Code section.
