TITLE 53 WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Section 7. Administration of Estates Generally, 53-7-1 through 53-7-78.

ARTICLE 4 CLAIMS AGAINST OR IN FAVOR OF ESTATE

53-7-44. Satisfaction of debts.

Except as otherwise provided by the will, any debt not due by its terms at the time for payment of debts of equal priority shall be satisfied and the estate shall be discharged with respect to such debt in such manner as the personal representative deems to be in the best interest of the estate in accordance with the following rules:

The debt may be prepaid in accordance with the terms of any right to prepay;
By agreement with the creditor, the debt may be satisfied before it is due by the payment of an amount representing the agreed present value of the debt;
By agreement with the creditor, the debt may be assumed by one or more heirs or beneficiaries or by any other person; and
By agreement with the creditor, or by order of the probate court after notice to the creditor and a hearing, arrangement for future payment may be made by creating a trust, giving a deed to secure debt or security interest, obtaining a bond or other security from one or more heirs or beneficiaries, or otherwise.

(Code 1981, §53-7-44, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section had no counterpart in former OCGA Title 53. Case law, however, does allow the type of arrangements described in this Code section.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 4003, former Code 1933, §§ 113-1512, 113-1513, 113-1514, and 113-1515, and former O.C.G.A. § 53-7-104 are included in the annotations for this Code section.

Suits of creditors and heirs.

- Creditors and heirs may sue third persons only in the name of the representative of the estate. Higginbotham v. Adams, 192 Ga. 203, 14 S.E.2d 856 (1941) (decided under Former Code 1933, § 113-1512).

Right of heir to expenses.

- An heir who has done the exact thing provided for by statute, except that the heir has been unable to obtain the consent or assignment of the administrator (which, under Supreme Court decisions, does not preclude the heir's action) may also realize expenses out of the fund brought in, the ordinary (now probate judge) having awarded the expenses in the exercise of the court's general jurisdiction over the disposition and distribution of the property of the estate. Estes v. Collum, 91 Ga. App. 186, 85 S.E.2d 561 (1954) (decided under former Code 1933, § 113-1512).

Appeals.

- Absent an allegation of fraud or collusion, legatee was precluded from appealing a probate court order directing the administrator of the decedent's estate to pay a creditor. Williams v. Theus, 186 Ga. App. 401, 367 S.E.2d 288 (1988) (decided under former O.C.G.A. § 53-7-104).

Statute requires that before such a compromise as contemplated by statute may be made the ordinary (now probate judge) shall first make an order directing it, and that the administrator upon making the administrator's return to the ordinary (now probate judge) shall make oath that such settlement was made in good faith and to the best interests of the estate. Hartford Accident & Indem. Co. v. Cohran, 106 Ga. App. 14, 126 S.E.2d 289 (1962) (decided under former Code 1933, § 113-1515).

Cited in Taylor v. Georgia Loan & Trust Co., 21 Ga. App. 272, 94 S.E. 254 (1917); Bond v. Maxwell, 40 Ga. App. 679, 150 S.E. 860 (1929); Price v. Nehi, Inc., 49 Ga. App. 196, 174 S.E. 722 (1934); Guthrie v. Gaskins, 184 Ga. 537, 192 S.E. 36 (1937); Hines v. Farkas, 109 F.2d 289 (5th Cir. 1940); Stewart v. Stewart, 240 Ga. App. 573, 524 S.E.2d 267 (1999).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 391, 392, 476, 479 et seq., 484, 509, 650, 1133, 1166 et seq., 1175.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 218, 236, 237.

ALR.

- Power of court to authorize compromise of infants' rights in controversies over estates or property, 33 A.L.R. 105.

Right of attorney whose selection is directed or suggested by will, against estate or personal representative, 166 A.L.R. 491.

Power and responsibility of executor or administrator to compromise claim due estate, 72 A.L.R.2d 191.

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.

Liability of executor or administrator, or his bond, for loss caused to estate by act or default of his agent or attorney, 28 A.L.R.3d 1191.

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