A Strong Offense
A Stronger Defense
Estates can be left open for a long time. Like decades long. And during that time, an executor is going to continue to owe certain fiduciary duties to the beneficiaries of the estate, such as the duty to provide an accounting to the beneficiaries. In In re: Estate of John Malcolm Wade, the Georgia Court of Appeals examined the time limit in which a beneficiary may bring an action for an accounting of an estate.
In this case, the estate had been open since 1987 and was still open in 2012 when one of the beneficiaries (Mary, who was also a co-executor with her four siblings) petitioned the probate court to obtain an accounting of her co-executors’ dealings on behalf of the estate. The siblings claimed that Mary’s action was time-barred under Georgia’s ten-year statute of limitation for actions against executors while Mary argued that she could bring the action at any time the estate was still open and because there was no adverse possession of estate property by the siblings that would have caused her cause of action to accrue. Mary was half right.
Yes, Georgia’s ten-year limitation period applies to petitions for accounting, but “[b]ecause of the high standard of care imposed on executors, the Supreme Court of Georgia has long refused to apply the ten-year statute of limitations to bar a beneficiary’s action for accounting by an executor in the absence of evidence that the executor has held the estate’s property adversely to the beneficiary.” So, the ten-year statute of limitations will not begin to run so long as there is no change of status to show an adverse holding of such property. Thus, Mary may be entitled to an accounting not because the estate was still open but because there was a factual issue whether any of the other co-executors claimed estate property adversely to Mary. In this case, it was up to a jury to decide whether any of the siblings’ actions before the filing of Mary’s petition put Mary on notice that they had claimed any estate property adversely to her.