Myers v. Myers, 297 Ga. 490

Background

Decedent executed a will naming James T. Myers, Jr. (Appellant) as first-choice executor and trustee and Anthony L. Myers (Appellee) as successor; Decedent owned Buckshot Properties, LLC (Buckshot), a major estate asset.
Appellant was appointed executor, created separate trusts for the sons, managed estate assets, and withdrew $63,401.05 in executor fees.
Appellee filed a petition alleging fiduciary breaches: failure to provide information, use of estate funds and property for personal expenses, operating Buckshot without paying rent, and commingling Buckshot and personal funds.
At the hearing Appellant admitted using the estate truck, paying house maintenance with estate funds, running Buckshot after Decedent’s death, and using Buckshot funds for personal expenses.
The probate court found conflicts of interest and fiduciary breaches, removed Appellant as executor, appointed a county administrator, ordered Appellant to repay overpaid commissions and $43,339.21 that Buckshot received from the estate, and directed winding up of Buckshot under its operating agreement.

Issues

Issue	Myers' Argument	Appellee's Argument	Held
Whether Appellant properly continued to operate Buckshot as executor	Will and statutes authorized continuation of decedent’s business; OCGA permits executor to become LLC member	Buckshot’s operating agreement mandated dissolution on member’s death; continuing operations used estate funds improperly and caused conflict	Court held Appellant breached fiduciary duty by failing to dissolve Buckshot and by spending estate funds on it; repayment and winding up ordered
Whether Appellant could keep commissions on payments to/for Buckshot	Entitled to 2.5% commission on sums paid out by personal representative	Payments to/for Buckshot were not proper payments for debts, legacies, or distributive shares	Court held commissions on those improper payments must be repaid
Whether Appellant had adequate notice that removal was a possible outcome of the hearing	Appellee withdrew formal removal request; Myers claims lack of notice that hearing could lead to removal	Amended petition repeated misconduct allegations; scheduling order and closing arguments put removal at issue	Court held Myers had adequate notice and opportunity to be heard; removal proper
Whether appointing a county administrator (rather than Appellee) was error	Appellant argues probate court should have appointed will’s named successor Appellee	Appellee will not serve; appointing county administrator was practical	Harmless error if any: Appellee declined to serve, so county administrator appointment stands

Key Cases Cited

Ringer v. Lockhart, 240 Ga. 82 (Ga. 1977) (executor is a trustee obligated to avoid conflicts and prioritize estate beneficiaries)
Ray v. Nat. Health Investors, Inc., 280 Ga. App. 44 (Ga. Ct. App. 2006) (broad statutory powers to continue business do not excuse breach of fiduciary duties)
In re Estate of Arnsdorff, 273 Ga. App. 612 (Ga. Ct. App. 2005) (executor must settle estate expeditiously; unnecessary delay and expense are remediable)
Greenway v. Hamilton, 280 Ga. 652 (Ga. 2006) (probate court may require an executor to forfeit commissions for breach of fiduciary duty)
In re Estate of Zeigler, 259 Ga. App. 807 (Ga. Ct. App. 2003) (executor must be given notice and opportunity to answer before removal)