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2018 Georgia Code 53-5-2 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 53-5-2 Case Law from Google Scholar Amendments to OCGA 53-5-2

TITLE 53 WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Section 5. Probate, 53-5-1 through 53-5-71.

ARTICLE 1 GENERAL PROVISIONS

53-5-2. Right to offer will for probate; "interested person" defined.

The right to offer a will for probate shall belong to the executor, if one is named. If for any reason the executor fails to offer the will for probate with reasonable promptness, or if no executor is named, any interested person may offer the will for probate. As used in this Code section, the term "interested person" shall include, but shall not be limited to, any legatee, devisee, creditor of the decedent, purchaser from an heir of the decedent, an administrator appointed for the decedent prior to the discovery of the will, and any individual making a claim under an earlier will.

(Code 1981, §53-5-2, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2018, p. 356, § 3-1/SB 436.)

The 2018 amendment, effective July 1, 2018, added the third sentence of this Code section.

COMMENT

This section carries forward the concept of former OCGA Sec. 53-3-2. The section is modified to allow interested persons to offer the will for probate if the executor fails to act promptly.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-614, are included in the annotations for this Code section.

Law reviews.

- For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015).

Renunciation is an act whereby a person, named in a will as executor, declines to take on personally the burden of that office. The act is, therefore, predicated on an existing office. It presupposes the existence of the will. If no will has been made, there is no executorship to renounce. Nor until it is shown that there is a will, can it appear that there is a renunciable executorship. Wheeler v. Wheeler, 82 Ga. App. 831, 62 S.E.2d 579 (1950) (decided under former Code 1933, § 113-614).

Interested persons only have right to file caveat.

- Georgia Supreme Court has found that only those who have some interest in the will or estate which will be affected or concluded by probate have a right to file a caveat. Georgia cases have recognized those interested persons with standing to caveat a will to include heirs, a purchaser from an heir, a judgment creditor of an heir, an administrator appointed for the testator before the discovery of the will, and persons claiming under an earlier will. Ray v. Stevens, 295 Ga. 895, 764 S.E.2d 809 (2014).

Must be an interested person.

- Trial court erred by denying two children's motion to dismiss the petition to probate filed by the decedent's brother because the brother lacked standing to offer the will to probate under O.C.G.A. § 53-5-2 since the brother was not an interested person as the brother was not a judgment creditor of an heir of the decedent, a purchaser from an heir, a person claiming under an earlier will, or an administrator appointed for the decedent before discovery of the will. Ray v. Stevens, 295 Ga. 895, 764 S.E.2d 809 (2014).

General creditor not an interested person.

- Being a general creditor of an estate would not give a person standing to offer a will for probate; thus, a general creditor is not an interested person for purposes of O.C.G.A. § 53-5-2. Ray v. Stevens, 295 Ga. 895, 764 S.E.2d 809 (2014).

Separation of a legally married couple does not deprive the widow of her right to a year's support out of the husband's estate. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Civil Code 1933, § 113-1002); Hunnicutt v. Hunnicutt, 180 Ga. App. 798, 350 S.E.2d 770 (1986); Brown v. Estate of Brown, 246 Ga. App. 332, 539 S.E.2d 824 (2000) (decided under former O.C.G.A. § 53-5-2);(decided under former O.C.G.A. § 53-5-2).

Terminable nature of widow's right to year's support.

- Widow is entitled to no year's support unless she applies for it prior to her death and prior to her remarriage, and thus, it is apparent on its face that her right is a terminable one. United States v. Edmondson, 331 F.2d 676 (5th Cir. 1964) (decided under former Code 1933, § 53-5-2).

Impact of death of widow.

- When a widow dies pending proceedings to have a year's support set aside to her out of her husband's estate, a return of the appraisers setting aside a year's support is void. May v. Braddock, 92 Ga. App. 302, 88 S.E.2d 539 (1955).

Right to a year's support can be waived if application is not made while the spouse is alive and widowed. However, there is no basis to conclude that the year's support, if applied for, lapses if the award is not finalized before the death of the claimant. Wigley v. Hambrick, 193 Ga. App. 903, 389 S.E.2d 763 (1989), cert. denied, 193 Ga. App. 911, 389 S.E.2d 763 (1990) (decided under former O.C.G.A. § 53-5-2).

Cited in Fletcher v. Gillespie, 201 Ga. 377, 40 S.E.2d 45 (1946); Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Oakley v. Anderson, 235 Ga. 607, 221 S.E.2d 31 (1975); In re Estate of Ehlers, 289 Ga. App. 14, 656 S.E.2d 169 (2007).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, § 776.

C.J.S.

- 95 C.J.S., Wills, § 468.

ALR.

- Necessity of allegations that contestant of will is an interested party, 117 A.L.R. 1455.

Statutes dealing with existing intestate administration, upon discovery of will, 65 A.L.R.2d 1201.

Cases Citing O.C.G.A. § 53-5-2

Total Results: 4  |  Sort by: Relevance  |  Newest First

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Gentry v. Black, 351 S.E.2d 188 (Ga. 1987).

Cited 14 times | Published | Supreme Court of Georgia | Jan 7, 1987 | 256 Ga. 569

...r not. The question of how much the award for year's support should be was not reached. A certificate of immediate review was granted and appeal taken to the Court of Appeals. The Court of Appeals found the issue in the case to be whether under OCGA § 53-5-2 a surviving spouse is automatically entitled to an award for year's support from the estate of his or her deceased spouse without regard to whether any economic dependency actually existed between them during the deceased's lifetime....
...year's support award. We hold entitlement to a year's support award is a matter of status. This is established by demonstrating the applicant belongs within one of the classes of intended beneficiaries of the year's support statute codified in OCGA § 53-5-2 (b)....
...ar's support statute was expanded to include "widowers" among those eligible. OCGA § 53-5-1 (b). Demonstrating inclusion in the class of eligible applicants does not end the inquiry in a year's support proceeding. Under procedures contained in OCGA § 53-5-2 (b), the probate judge appoints appraisers to determine the amount of the award....
...deceased. Daniel v. First Nat. Bank of Claxton, 50 Ga. App. 632 (2) (179 SE 152) (1935). Judgment reversed. All the Justices concur. NOTES [1] The method of determining the amount of the year's support award has been redefined in amendments to OCGA § 53-5-2, effective July 1, 1986. See § 53-5-2 (b) and (c)....
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Harvey v. Sullivan, 529 S.E.2d 889 (Ga. 2000).

Cited 10 times | Published | Supreme Court of Georgia | May 8, 2000 | 272 Ga. 392, 2000 Fulton County D. Rep. 1732

...We find no error in the trial court's denial of Harvey's demand for a jury trial. 2. Harvey contends in two enumerations of error that the trial court erred in admitting the will to probate because the propounder of the will failed to produce the requisite witnesses to the will as required by OCGA § 53-5-21....
...Interrogatories sent to that witness were *891 completed, but the date placed on the answers by the notary preceded the date of the testatrix's death, which the trial court found to be a mistake by the notary. New interrogatories sent to the witness were returned without being completed. In accordance with OCGA § 53-5-24 [1] , the propounder put on a series of witnesses who established their familiarity with the testatrix's signature and testified that the signature on the will was hers. Harvey argues that OCGA § 53-5-24 is inapplicable to this case because it has not been shown that the living witness was inaccessible at the time the will was offered for probate, i.e., when the first petition for probate was filed....
...n the testimony in person or by affidavit or by deposition of at least two credible disinterested witnesses that the signature to the will is that of the individual whose will it purports to be or upon other sufficient proof of such signature." OCGA § 53-5-2
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Powell v. Thorsen, 322 S.E.2d 261 (Ga. 1984).

Cited 10 times | Published | Supreme Court of Georgia | Nov 6, 1984 | 253 Ga. 572

...The amendment to the laws governing year's support further provides that "application for year's support by a spouse or for the benefit of a spouse must be made and filed during the time that the spouse is widowed and while the spouse is living and not otherwise." OCGA § 53-5-2 (c)....
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Ray Et Al. v. Stevens, 295 Ga. 895 (Ga. 2014).

Published | Supreme Court of Georgia | Oct 20, 2014 | 764 S.E.2d 809

...ded: October 20, 2014 S14A0767. RAY et al. v. STEVENS. HUNSTEIN, Justice. In this case we must determine whether the brother of a decedent had standing to offer the decedent’s will for probate pursuant to OCGA § 53-5-2. For the reasons set forth below, we hold that the brother, Propounder Thomas Arthur Stevens, did not have standing to offer the will for probate because he was not an “interested person” as required by OCGA § 53-5-2....
...der did not exert an undue influence over the decedent. After the court denied their motion for new trial, Caveators appealed to this Court, arguing, inter alia, that the court erred by denying their motion to dismiss for lack of standing. Section 53-5-2 of Georgia’s Probate Code states as follows: The right to offer a will for probate shall belong to the executor, if one is named....
...Regardless of whether the will was probated, it is immaterial “whether a creditor receive payment of his debt from an executor or from an administrator.” Hooks v. Brown, 125 Ga. 122, 131 (53 SE 583) (1906). Thus, Propounder, as a general creditor, is not an “interested person” for purposes of OCGA § 53-5-2. Caveators urge the Court to define an “interested person” who may offer a will for probate in the same way we have defined an “interested person” with standing to caveat a will....
...from an heir, a person claiming under an earlier will, or an administrator appointed for the decedent before discovery of the will. Contrary to Propounder’s arguments, not everyone may offer a will for probate. Instead, pursuant to OCGA § 53-5-2, only interested persons may do so....