O.C.G.A. § 53-5-26 (2019)

Annotations

COMMENT This section carries forward the substance of former OCGA Sec. 53-3-23. JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1943, p. 423, § 1, and former O.C.G.A. § 53-3-23 are included in the annotations for this Code section. Payment by estate of executor’s expenses. - Probate court did not err in authorizing payment by the estate of an executor’s expenses in probating a testator’s will because there was evidence that the executor had reasonable grounds to believe that the will the executor propounded was valid and operative, and the probate court found no evidence of any undue influence affecting the testator in the execution of the propounded will, much less undue influence of appellee on the testator. Simmons v. Harms, 287 Ga. 176, 695 S.E.2d 38 (2010). Payment of executor’s motion for expenses. - Probate court’s order granting an executor’s motion for payment of expenses of probate pursuant to O.C.G.A. § 53-5-26 was not prohibited by the supersedeas imposed by the filing of the initial notice of appeal because the order permitted the executor to have the estate pay expenses, including reasonable attor-

ney’s fees, incurred by the executor in the probate of the will and while acting in good faith, and it was neither based upon nor related to the carrying into effect of the judgment on appeal. Simmons v. Harms, 287 Ga. 176, 695 S.E.2d 38 (2010). Good faith is necessary for the administrator as well as the executor who seeks to bind the estate for attorney fees. Hudson v. Abercrombie, 258 Ga. 729, 374 S.E.2d 83 (1988) (decided under former O.C.G.A. § 53-3-23). Question of good will turns on the circumstances of each case and former O.C.G.A. § 53-3-23 did not limit the discretion given the trial court to determine good faith of the propounder of a will who was seeking to recover attorney fees. Holland v. Farmer, 217 Ga. App. 546, 458 S.E.2d 175 (1995) (decided under former O.C.G.A. § 53-3-23). Mere fact that a propounder of an earlier will attempts to ‘‘defeat’’ a later will does not prove the propounder did not act in good faith, and lack of good faith is not conclusively proved by the fact that the propounder of an earlier will has a ‘‘personal interest’’ in the will. Holland v.

Farmer, 217 Ga. App. 546, 458 S.E.2d 175 (1995) (decided under former O.C.G.A. § 53-3-23). Fraud in procurement of will prevents recovery. - A finding of fraud or undue influence in the procurement of the

will sought to be probated indicates bad faith and prevents recovery. Sauls v. Estate of Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977) (decided under Ga. L. 1943, p. 423, § 1).

RESEARCH REFERENCES Am. Jur. 2d. - 31 Am. Jur. 2d, Executors and Administrators, §§ 471, 517. C.J.S. - 34 C.J.S., Executors and Administrators, § 1140. 95 C.J.S., Wills, §§ 787, 791, 793. ALR. - Right to allowance out of the estate of attorney’s fees in attempt to establish or defeat a will, 10 A.L.R. 783; 40 A.L.R.2d 1407. Attorney’s lien on decedent’s estate, 50 A.L.R. 657. Power of probate court to require attorney to return to estate or trust overpayment on account of fees or services, 70 A.L.R. 478. Allowance out of decedent’s estate for services rendered by attorney not employed by executor or administrator, 142 A.L.R. 1459.

Validity, construction, and effect of provision in will regarding amount payable for attorney’s services, 148 A.L.R. 362. Attorney’s fees and expenses incurred by personal representative in successful defense of will contest as chargeable to the residuary estate or as apportionable among beneficiaries, 20 A.L.R.2d 1226. Personal liability of executor or administrator for fees of attorney employed by him for the benefit of the estate, 13 A.L.R.3d 518. Amount of attorneys’ compensation in absence of contract or statute fixing amount, 57 A.L.R.3d 475. Amount of attorneys’ compensation in proceedings involving wills and administration of decedents’ estates, 58 A.L.R.3d 317.