O.C.G.A. § 53-7-41 (2019)
Notice for creditors to render accounts; notification of creditors’ claims; requirement of reasonable additional proof or accounting; failure of creditors to give notice of claims
(a) The personal representative shall be allowed six months from the date of the qualification of the first personal representative to serve in which to ascertain the condition of the estate.
(b) Every personal representative shall, within 60 days from the date of qualification, publish a notice directed generally to all of the creditors of the estate to notify the personal representative of their claims and render an account of their demands for payment thereon. The personal representative’s notice shall be published once a week for four weeks in the official newspaper of the county in which the personal representative qualified. No particular form shall be required for creditors to notify the personal representative of their claims, and such notification of a creditor’s claim shall be sufficient for purposes of this Code section if given in writing, providing an account number or other identifying information or itemization adequate to establish the indebtedness as an obligation of the estate, and stating the principal balance and any applicable interest or other additional charges lawfully owed. An invoice or account statement satisfying the requirements of the preceding sentence of this subsection and generated by a creditor in the ordinary course of such creditor’s business shall constitute sufficient notification to the personal representative of such creditor’s claim if the personal representative actually receives such notification of the claim or if such creditor files such notification with the probate court having jurisdiction over the decedent’s estate or sends such notification of the claim by electronic transmission, other form of wire or wireless communication, or by first-class mail or private carrier to the address of the decedent, the personal representative, or the attorney representing the personal representative; provided, however, that a notification of a claim sent by a creditor by electronic communication to an account for which the decedent is the user shall constitute sufficient notification to the personal representative of such creditor’s claim only if the content of such electronic communication lawfully is disclosed to the personal representative pursuant to Chapter 13 of this title. As used in this subsection, the terms ‘‘account’’, ‘‘content of an electronic communication’’, ‘‘electronic communication’’, and ‘‘user’’ shall have the meaning provided by Code Section 53-13-2.
(c) After receiving sufficient notification of a creditor’s claim under subsection (b) of this Code section, the personal representative may require reasonable additional proof or accounting from such creditor prior to paying such creditor’s claim, but such requirement by the personal representative shall not affect adversely the timeliness of such creditor’s notification to the personal representative of the creditor’s claims.
(d) Creditors who fail to notify the personal representative of their claims in the manner provided by subsection (b) of this Code section within three months from the date of publication of the personal representative’s last notice shall lose all rights to an equal participation with creditors of equal priority to whom distribution is made before sufficient notification of such claims is given to the personal representative, and they may not hold the personal representative liable for a misappropriation of the funds. If, however, there are assets in the hands of the personal representative sufficient to pay such debts and if no claims of greater priority are unpaid, the assets shall be thus appropriated notwithstanding failure of such creditors to timely notify the personal representative of their claims.
History
Code 1981, § 53-7-41, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 33; Ga. L. 2020, p. 377, § 1-43/HB 865; Ga. L. 2021, p. 922, § 53/HB 497. The 2020 amendment, effective January 1, 2021, rewrote this Code section, which read: ‘‘The personal representative shall be allowed six months from the date of the qualification of the first personal representative to serve in which to ascertain the condition of the estate. Every personal representative shall, within 60 days from the date of qualification, publish a notice directed generally to all of the creditors of the estate to render an account of their demands. The notice shall be published once a week for four weeks in the official newspaper of the county in which the personal representative qualified. Creditors who fail to give notice of
claims within three months from the date of publication of the personal representative’s last notice shall lose all rights to an equal participation with creditors of equal priority to whom distribution is made before notice of such claims is brought to the personal representative, and they may not hold the personal representative liable for a misappropriation of the funds. If, however, there are assets in the hands of the personal representative sufficient to pay such debts and if no claims of greater priority are unpaid, the assets shall be thus appropriated notwithstanding failure to give notice.’’ The 2021 amendment, effective May 10, 2021, part of an Act to revise, modernize, and correct the Code, substituted ‘‘to timely notify’’ for ‘‘timely to notify’’ near the end of the last sentence of subsection (d).
Annotations
COMMENT This section carries forward former OCGA Sec. 53-7-92. The use of the word ‘‘personal representative’’ in the first sentence indicates that the six-month term does not begin to run if a temporary administrator is appointed. See Code Sec. 53-1-2 for the definitions of ‘‘personal representative’’ and ‘‘temporary administrator’’. JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PENALTY FOR DELAY IN FILING CREDITOR CLAIM LIABILITY OF ADMINISTRATOR STATUTE OF LIMITATIONS
General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-1505, and former O.C.G.A. § 53-7-92 are included in the annotations for this Code section. Distinction between a ‘‘claim’’ or a ‘‘demand’’ and a ‘‘debt’’ not all valid ‘‘claims’’ are ‘‘debts,’’ nor are all valid ‘‘demands’’ debts; ‘‘the assets of such estate’’ of a deceased person ‘‘are only bound for the debts contracted by the testator during life.’’ State Banking Co. v. Hinton, 178 Ga. 68, 172 S.E. 42 (1933) (decided under former Code 1933, § 113-1505). Cited in Almond v. Mobley, 40 Ga. App. 305, 149 S.E. 293 (1929); Agricultural Fin. Corp. v. Bates, 171 Ga. 230, 155 S.E. 32 (1930); Collier v. Georgia Sec. Co., 57 Ga. App. 485, 195 S.E. 920 (1938); Sublusky v. Fudge, 121 Ga. App. 674, 175 S.E.2d 100 (1970); Fleming v. Citizens & S. Nat’l Bank, 243 Ga. 144, 253 S.E.2d 76 (1979); DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980); Deller v. Smith, 250 Ga. 157, 296 S.E.2d 49 (1982). Penalty for Delay in Filing Creditor Claim Penalty for delay in presentation of claims against an estate is loss of priority not loss of any part of the debt, principal, or interest. Trustees of Jesse Parker Williams Hosp. v. Nisbet, 191 Ga. 821, 14 S.E.2d 64 (1941) (decided under former Code 1933, § 113-1505). Publication of notice of limitation of time to file claims. - In general, when an order is given for the publication of a notice of a limitation of the time to file claims, and such notice is duly published, claims not filed within the time specified in the notice are precluded in that proceeding from sharing in the assets. This result is held to follow, however, only when there has been, in the meantime, a final distribution of the funds in the hands of the receiver, based upon claims proven, unless injustice would otherwise be done. Gainesville Nat’l Bank ex rel. Com. Union Assurance Co. v. Martin, 187 Ga. 559, 1
S.E.2d 636 (1939) (decided under former Code 1933, § 113-1505). Liability of Administrator Suit on bond of administrator. - When bond has been given by an administrator in the usual course of administration proceedings, as required by statute, the ordinary remedy of a creditor of the estate, after failure by the administrator to pay the obligation in due course, and after compliance by the creditor with preliminary statutory procedure, is a suit upon the bond. Such a suit against the administrator and the securities on the bond usually affording an adequate remedy at law, it is generally unnecessary to resort to equity for the collection or protection of the claim. Butler v. Floyd, 184 Ga. 447, 191 S.E. 460 (1937) (decided under former Code 1933, § 113-1505). Plaintiff would not be relieved from liability, although plaintiff may have given notice to creditors in pursuance of law and the present claim for taxes was not asserted, or brought to the attention of the plaintiff by any taxing official until after distribution, if the plaintiff, as administrator, had knowledge of such tax liability, and the plaintiff distributed the estate at the plaintiff ’s peril; and it is immaterial that the claim for taxes was not asserted within the time fixed by law after notice by the administrator to creditors, or before such distribution. Hardin v. Reynolds, 189 Ga. 534, 6 S.E.2d 328 (1939) (decided under former Code 1933, § 113-1505). Statute of Limitations When period does not run. - Statute of limitations does not run during the 12- (now six) month period referred to in the statute. Cannon v. Tant, 229 Ga. 771, 195 S.E.2d 15 (1972) (decided under former Code 1933, § 113-1505). Tolling of statute of limitations for survival actions. - Former O.C.G.A. § 53-7-92 did not toll the statute of limitations for survival actions accruing at or before the decedent’s death. Dowling v. Lopez, 211 Ga. App. 578, 440 S.E.2d 205 (1993) (decided under former Code O.C.G.A. § 53-7-92).
RESEARCH REFERENCES Am. Jur. 2d. - 31 Am. Jur. 2d, Executors and Administrators, §§ 564, 571, 600, 604, 605, 608, 620, 623, 649, 650, 659. C.J.S. - 34 C.J.S., Executors and Administrators, §§ 527, 534, 540. ALR. - Effect of conduct of personal representative preventing filing of claim against estate within time allowed by the statute of nonclaims, 11 A.L.R. 246; 66 A.L.R. 1415. Applicability of nonclaim statutes to claims arising under contract executory at the time of death, 41 A.L.R. 144; 47 A.L.R. 896. Applicability of statute of nonclaim to superadded liability of stockholders, 41 A.L.R. 180; 51 A.L.R. 772; 87 A.L.R. 494. Failure to present claim against estate of deceased principal as releasing surety, 50 A.L.R. 1214. Necessity of presenting, probating, or prosecuting claims for allowance as affected by provision of will directing payment of debts, 65 A.L.R. 861. Construction and application of statutory provisions excusing under certain conditions compliance with requirement as to filing claim against decedent’s estate, 71 A.L.R. 940. Remedies of creditors of insolvent decedent’s estate where other creditors have received excessive payments, 77 A.L.R. 981. Nonclaim statute as applied to real estate mortgage or mortgage debt, 78 A.L.R. 1126. Priority received by creditors as regards ancillary assets of receivership or decedent’s estate as justification for reducing their claims or dividends upon distribution in the primary or domiciliary jurisdiction so as to effect ultimate equality among creditors as regards total assets, 92 A.L.R. 596; 127 A.L.R. 504. Claim on decedent’s contract of guaranty, suretyship, or endorsement as contingent within statute of nonclaim, 94 A.L.R. 1155. Necessity of presenting claim against decedent’s estate as affected by executor’s or administrator’s personal duty or obligation to claimant, 103 A.L.R. 337. Right of creditor of decedent, before
perfecting his claim or after loss of recourse against decedent’s estate, to pursue remedy against property conveyed by the decedent in fraud of his creditors, 103 A.L.R. 555. Right of nonresident creditor of decedent’s estate to file claim in ancillary administration, 106 A.L.R. 893. Claims for taxes as within contemplation of statute requiring presentation of claims against decedents’ estates, 109 A.L.R. 1370. Nonclaim statute as governing claim barred, subsequent to death of obligor, by general statute of limitations, 112 A.L.R. 289. Filing claim against estate of decedent as affecting or precluding other remedies against estate, 120 A.L.R. 1225. Claim of government or subdivision thereof as within provision of nonclaim statute, 34 A.L.R.2d 1003. Failure of personal representative to file proof of publication of notice of appointment or notice to creditors within specified time as tolling statute of nonclaim, 42 A.L.R.2d 1218. Exclusiveness of grounds enumerated in statute providing, under specified circumstances, extension of time for filing claims against decedent’s estate, 57 A.L.R.2d 1304. Necessity of presenting spouse’s claim under separation agreement to personal representative of other spouse’s estate, 58 A.L.R.2d 1283. Appealability of order, of court possessing probate jurisdiction, allowing or denying tardy presentation of claim to personal representative, 66 A.L.R.2d 659. Asserted right to rescission or cancellation of contract with decedent as claim which must be presented to his personal representative, 73 A.L.R.2d 883. Tort claimant against decedent’s estate as person or party interested, or as creditor, entitled to object to account or report of personal representative, 87 A.L.R.2d 1231. Application of nonclaim statute to claim for unmatured payments under land contract, 99 A.L.R.2d 275. Tort claim as within nonclaim statutes, 22 A.L.R.3d 493.
Amount of claim filed against decedent’s estate as limiting amount recoverable in action against estate, 25 A.L.R.3d 1356. Executors and administrators: construction of statutory provision giving priority on distribution to claims for wages of servants, employees, or the like, 52 A.L.R.3d 940.
Validity of claims against estate filed prior to publication of notice to creditors, 70 A.L.R.3d 784. Validity of nonclaim statute or rule provision for notice by publication to claimants against estate - Post-1950 cases, 56 A.L.R.4th 458.