The term “personal representative” appears throughout Georgia’s wrongful death and estate statutes, and the role can be confusing because it touches two separate claims. A personal representative is the person legally responsible for administering a deceased person’s estate. In the context of a death caused by wrongful conduct, that role intersects with both the survival action and, in certain circumstances, the wrongful death claim itself. This guide explains what the personal representative is and what functions the role serves under Georgia law.
Who Is a Personal Representative
Under Georgia law, a personal representative is the individual appointed to administer the estate of someone who has died. The term covers two situations. An executor is a personal representative named in a valid will. An administrator is a personal representative appointed by the probate court when the deceased person left no will, or left a will that did not name an executor, or named an executor who cannot serve. In both cases the personal representative is appointed and supervised through the probate court of the appropriate Georgia county.
The general powers and duties of personal representatives are set out in Title 53 of the Official Code of Georgia Annotated, particularly O.C.G.A. 53-7-1. A personal representative is a fiduciary, which means the role carries a legal obligation to act in the best interests of everyone with an interest in the estate.
The Personal Representative and the Survival Action
The clearest role of the personal representative in a death case involves the survival action. A survival action arises under O.C.G.A. 9-2-41, which provides that a tort cause of action does not abate when the injured person dies. Instead, the claim survives and may be brought on behalf of the estate.
The personal representative is the proper party to bring the survival action. Through that action, the estate may pursue damages that belong to the deceased person rather than to surviving family members. These typically include the conscious pain and suffering the person experienced before death, medical expenses incurred between the injury and the death, funeral and burial expenses, and, where the conduct meets the legal standard, punitive damages. Any amounts recovered through the survival action become assets of the estate.
The Personal Representative and the Wrongful Death Claim
The wrongful death claim is separate from the survival action. The wrongful death claim measures the full value of the life of the decedent and belongs, in the first instance, to the surviving family members identified in O.C.G.A. 51-4-2 and 51-4-4, meaning the surviving spouse, then the children, then the parents.
Because the wrongful death claim belongs directly to those family members, the personal representative is not automatically the party who brings it. A surviving spouse or child can hold and pursue the wrongful death right under the statute without being appointed as administrator or executor. The personal representative steps in as the party to bring the wrongful death action only under O.C.G.A. 51-4-5, which applies when the deceased person left no spouse, no child, and no one else entitled to bring the claim. In that situation the personal representative brings the wrongful death action and holds the recovery for the benefit of the next of kin rather than for the estate generally.
Fiduciary Duties of the Role
Whatever claims are involved, the personal representative is bound by fiduciary duties. Georgia law requires the personal representative to use the powers granted by law, by any will, and by court orders in the best interests of all interested persons and with due regard for their respective rights. The personal representative also has a general duty to settle the estate as efficiently and with as little loss of value as is reasonable.
Core administrative duties typically include gathering the estate’s assets, paying valid debts and expenses of administration, and distributing the remaining estate to the proper beneficiaries before closing the estate. When a survival action recovers money for the estate, that money is an estate asset subject to these duties, including the payment of valid creditor claims before distribution.
Allocation Between the Two Types of Recovery
One sensitive area where the personal representative’s fiduciary role matters is the allocation of any recovery between the wrongful death claim and the estate’s survival claim. The two claims compensate different losses and are distributed to different parties. Wrongful death proceeds pass to the statutory beneficiaries and are exempt from the deceased person’s debts. Survival action proceeds become estate assets that can be reached by estate creditors. When a settlement covers both claims, how the funds are allocated affects who ultimately receives them. A personal representative who handles that allocation owes fiduciary duties to the beneficiaries and is expected to act in their best interests rather than in a way that improperly favors one outcome.
Appointment Through the Probate Court
Because the role is created and supervised by the probate court, a personal representative generally must be formally appointed before exercising the authority of the office. The appointment of a permanent administrator is also significant for timing. Georgia law allows a period of time to pass between a death and the appointment of an administrator, and the appointment of a permanent administrator capable of asserting the estate’s claims is what ends the tolling of certain estate claims.
Summary
In a Georgia wrongful death case, the personal representative is the fiduciary who administers the estate. The role is central to the survival action under O.C.G.A. 9-2-41, which the personal representative brings on behalf of the estate. The role intersects with the wrongful death claim itself only when no surviving spouse, child, or parent is entitled to bring it, in which case O.C.G.A. 51-4-5 directs the personal representative to bring the claim for the benefit of the next of kin. Throughout, the personal representative owes fiduciary duties to act in the best interests of all interested parties.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.