O.C.G.A. § 53-7-56 (2019)
Resignation
(a) A personal representative may resign:
(1) In the manner and under the circumstances described in the will;
(2) Upon petition to the probate court, showing that the resignation has been requested in writing by all heirs of an intestate estate or all beneficiaries of a testate estate; or
(3) Upon petition to the probate court, showing to the satisfaction of the court that:
(A) The personal representative is unable to continue serving due to age, illness, infirmity, or other good cause;
(B) Greater burdens have developed upon the office of personal representative than those that originally were contemplated or should have been contemplated when the personal representative was qualified and the additional burdens would work a hardship upon the personal representative;
(C) Disagreement exists between one or more of the beneficiaries or heirs and the personal representative in respect to the personal representative’s management of the estate, which disagreement and conflict appear deleterious to the estate;
(D) The resignation of the personal representative will result in or permit substantial financial benefit to the estate;
(E) The resigning personal representative is one of two or more acting personal representatives and the other personal representatives will continue in office with no adversity to the estate contemplated; or
(F) The resignation would not be disadvantageous to the estate.
(b) A personal representative’s petition to resign shall be made to the probate court and the court shall cause citation to issue and service of notice to be made upon all the heirs of an intestate estate or the beneficiaries of a testate estate in the manner provided by Chapter 11 of this title.
History
Code 1981, § 53-7-56, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2020, p. 377, § 1-47/HB 865. The 2020 amendment, effective January 1, 2021, substituted ‘‘that originally were’’ for ‘‘which were originally’’ in sub-
paragraph (a)(3)(B); and, in subsection (b), substituted ‘‘the court shall cause citation to issue and service of notice to’’ for ‘‘service shall’’ and inserted ‘‘in the manner provided by Chapter 11 of this title’’ at the end.
Annotations
COMMENT This section applies the resignation provisions for trustees that are found in the Georgia Trust Act at Code Sec. 53-12-175 to personal representatives. This section replaces former OCGA Sec. 53-7-149. JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION NOTICE General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 4091, and former Code 1933, § 113-2303, are included in the annotations for this Code section. Designations of executors. - Provisions of this statute, relating to the resignations of administrators, are applicable to executors. Darnell v. Tate, 84 Ga. App. 831, 67 S.E.2d 819 (1951) (decided under former Code 1933, § 113-2306). When an administrator desires to resign a trust from any cause, the administrator shall petition the ordinary (now probate judge), setting forth the administrator’s reasons and the name of a suitable person qualified and entitled to serve in the administrator’s place, and
citation shall issue requiring the next of kin to show cause why the resignation should not become effective and the new administrator appointed. Davis v. Melton, 51 Ga. App. 685, 181 S.E. 300 (1935) (decided under former Code 1933, § 113-2306). Original executor cannot name an executor of the estate represented by the original executor; but when the original executor executes a will and therein names an executor for one’s own estate, the latter ipso facto becomes a successor executor of the original estate. Gormley v. Watson, 177 Ga. 763, 171 S.E. 280 (1933) (decided under former Code 1933, § 113-2306). Cited in Mutual Benefit Life Ins. Co. v. Wilson, 189 Ga. 344, 6 S.E.2d 716 (1939); Darnell v. Tate, 206 Ga. 576, 58 S.E.2d 160 (1950).
ADMINISTRATION OF ESTATES GENERALLY Notice
Executor must give notice of resignation. - Former Code 1933, § 113-2306 considered in conjunction with former Code 1933, § 113-1101 required that an executor desiring to resign the executor’s trust give notice of this fact to the next of kin of the testator. Gormley v. Watson, 177 Ga. 763, 171 S.E. 280 (1933) (decided under former Code 1933, § 113-2306). Nearest of next of kin are entitled to notice of proceedings for the resignation of administrators and guardians where they reside in the state. Bivins v. Middlebrooks, 72 Ga. App. 570, 34 S.E.2d 551 (1945) (decided under former Code 1933, § 113-2306).
Publication of the application and citation is necessary in order for the resignation to become effective and valid. Davis v. Melton, 51 Ga. App. 685, 181 S.E. 300 (1935) (decided under former Code 1933, § 113-2306). Next of kin of a testate are entitled to the same notice as the next of kin of an intestate; and the next of kin who are also legatees under the will are entitled to the formal written notice of the resignation of an executor and the appointment of the executor’s successor. Gormley v. Watson, 177 Ga. 763, 171 S.E. 280 (1933) (decided under former Civil Code 1910, § 4091).
RESEARCH REFERENCES Am. Jur. 2d. - 31 Am. Jur. 2d, Executors and Administrators, §§ 306, 307. C.J.S. - 33 C.J.S., Executors and Administrators, §§ 103, 104, 105.
ALR. - Right of executor or administrator to resign, 91 A.L.R. 712.
ARTICLE 6 SETTLEMENT OF ACCOUNTS PART 1 GENERAL PROVISIONS