Executor Is Subject to Probate Court’s Authority While Serving

In In re Estate of Cornett, 357 Ga. App. 310 (2020), Sarah Cornett was appointed successor Executor over the Will of her deceased husband, George Thomas Cornett, Jr. (“Tom”). Tom had five surviving adult children. Sarah appealed after she was removed as Executor and ordered to return certain estate assets and to pay certain funds back to the estate.

Tom’s Will was admitted to probate in January 2016. In November 2016, the original Executor was discharged and Sarah was appointed as successor executor. Letters testamentary were issued.

On February 5, 2018, Tom’s surviving adult children and the only child of a daughter who predeceased filed a verified Petition for Accounting and Settlement of Accounts. They alleged they conveyed concerns to Sarah regarding administration of the estate, that they had repeatedly sought specific information and documents regarding the estate and that Sarah refused to settle the estate or provide the requested information. They requested an order pursuant to OCGA § 53-7-62 citing Sarah to appear before the probate court for an accounting and settlement of accounts and to produce a list of documents substantiating certain expenditures.

The probate court issued a citation requiring Sarah to appear and produce records relating to the estate. In July 2018, the court held a hearing where Sarah failed to provide answer or additional information. Among other issues, she could not explain why her lawyers were paid $92,000 from estate funds, and she had not collected on promissory notes owed by her son, Gregg Gordon. Sarah had also paid person expenses such as property taxes with estate funds. The probate court found Sarah in contempt and gave her 30 days to produce “every single detail[,]” including providing copies of all bills for professional services, with said bills being specific enough to determine what work was done and to prove its necessity to the Estate.” Then, … (almost) nothing happened for almost a year.

On July 3, 2019, Appellees filed a Petition for Removal of Executor and Appointment of Successor. Sarah objected to the peition because she had filed a complaint for declaratory judgment in Superior Court four months prior to the July 3rd Petition. While acknowledging that it had no authority over a related trust, the Probate Court pointed out that Sarah had a fiduciary duty until she was discharged as executor and the estate was closed.

The court recalled Sarah’s nonresponsiveness to questions at the first hearing, and noted that there was no way at that time “to decide if there was money missing[or] to decide what had happened.” The probate court found that the Petition for Accounting was still properly before it, and that it was too late to request a jury trial or discovery as to that petition. The court added that it was not dealing with the Appellees’ Petition for Removal, but emphasized that it needed no such petition before it to remove an executor.

Following a hearing, Sarah was removed as executor and ordered to repay various expenditures including a $100,724 loan on real proeprty, $89,779.58 in attorney fees and $7,030 in accounting fees. Sarah appealed that order.

The Court of Appeals initially held that the probate court properly exercised jurisdiction under OCGA § 15-9-30(a). Although the declaratory judgment statute (OCGA § 9-4-4) is to be librally construed, “[u]nder the facts of this case, we agree with Appellees that Sarah’s complaint was “an improper effort to receive a Superior Court blessing on actions the Probate Court had already condemned.”

Sarah argued the probate court exceeded it jurisdiction by ordering her to divest trust funds and return them to the estate.

When Sarah transferred the remaining funds from the Estate to the marital trust in early 2019, she did so in her role as executor of the Estate, subject to the authority of the probate court. Sarah had neither provided a final accounting nor petitioned for discharge. “Until [s]he is properly discharged or otherwise relieved by law, an executor retains the authority of that appointment and the obligations of that fiduciary relationship with those [s]he represents. (Emphasis added)

There was no abuse of discretion in requiring repayment of attorney fees. “[W]hile [Sarah] is certainly entitled to seek professional help, she may not pay attorney fees benefiting an entity or person other than the [E]state.”

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