O.C.G.A. § 44-13-101 (2019)
Method of obtaining exemption
Every debtor seeking the benefit of Code Section 44-13-100 or, if he
refuses, his wife or any person acting as her next friend shall make out a schedule of the property claimed to be exempt and shall return the schedule to the judge of the probate court of the county without making any application for homestead; and it shall not be necessary to publish the schedule in a newspaper. The judge shall record the schedule in a book to be kept by him for that purpose; and, when land out of his county is exempted, he shall transmit the schedule to the judge of the probate court of the county in which the land is located for recording in like manner.
History
Laws 1822, Cobb’s 1851 Digest, p. 385; Code 1863, § 2014; Code 1868, § 2014; Ga. L. 1870, p. 74, § 1; Code 1873, § 2041;
Code 1882, § 2041; Civil Code 1895, § 2867; Ga. L. 1898, p. 52, § 1; Civil Code 1910, p. 3417; Code 1933, § 51-1401.
Annotations
JUDICIAL DECISIONS Duty of probate court. - O.C.G.A. § 44-13-101 does not require the probate judge to enter approval on the schedule of property filed by a debtor seeking its benefit. Carrie v. Carnes, 145 Ga. 184, 88 S.E. 949, 1916 Ga. LEXIS 229 (1916). Federal bankruptcy debtors exempt from O.C.G.A. § 44-13-101. - The federal Bankruptcy Code, rules, and official forms, rather than Georgia law, apply and control in prescribing the procedure whereby exemptions are to be claimed in a bankruptcy case, and, as a result, debtors in bankruptcy are not required to comply with O.C.G.A. § 44-13-101. Caruthers v. Fleet Fin., Inc., 87 B.R. 723, 1988 Bankr. LEXIS 825 (Bankr. N.D. Ga. 1988). Where land lies in more than one county, the record must be made in each of the counties where the land set apart is situated. McLamb & Co. v. Lambertson, 4 Ga. App. 552, 4 Ga. App. 553, 62 S.E. 107, 1908 Ga. App. LEXIS 475 (1908). Contents of schedule. - The schedule filed by an insolvent debtor should contain a list of the property which the debtor owned at the time of filing the same. Johnson v. Martin, 25 Ga. 268, 1858 Ga. LEXIS 66 (1858). Sufficiency of description. - In a statutory homestead the description of the property should be sufficiently definite to impart notice of the property homesteaded. Arnold v. Faulk, 19 Ga. App. 797, 92 S.E. 294, 1917 Ga. App. LEXIS 364 (1917); Worley v. Arnold, 74 Ga. App. 772,
41 S.E.2d 568, 1947 Ga. App. LEXIS 695 (1947). Owner of property must be disclosed. - The schedule of exempt property must, on its face, disclose in express terms or by reasonable implication, whose property it is that the schedule is meant to comprehend and secure. Mapp v. Long, 62 Ga. 568, 1879 Ga. LEXIS 574 (1879). Property within specified classes. - A schedule of property returned to the ordinary (now probate judge) as required by O.C.G.A. § 44-13-101 must be of particular property falling within the classes specified in the statute. Kendall v. Parker, 146 Ga. 260, 91 S.E. 31, 1916 Ga. LEXIS 699 (1916). Taking both homesteads prohibited. - An applicant for a homestead is not authorized to take both the statutory and the constitutional homesteads. Worley v. Arnold, 74 Ga. App. 772, 41 S.E.2d 568, 1947 Ga. App. LEXIS 695 (1947). Wife obtaining exemption. - The wife may obtain an exemption under O.C.G.A. § 44-13-101 where the husband refuses. Connally v. Hardwick, 61 Ga. 501, 1878 Ga. LEXIS 169 (1878). Refusal of husband essential. - It is essential to the validity of a schedule filed by the wife for the purpose of having the property of the husband set apart as exempt that it shall affirmatively appear in the schedule that the husband refused to file the same; and if this fact does not so appear, the schedule, though recorded, is
void, and may be collaterally attacked in any court of competent jurisdiction in which the creditors of the husband are seeking to subject the property embraced in the schedule to the payment of the husband’s debts. Mutual Benefit Bldg. Ass’n v. Tanner, 96 Ga. 338, 23 S.E. 403, 1895 Ga. LEXIS 76 (1895); Davis v. Lumpkin, 106 Ga. 582, 32 S.E. 626, 1899 Ga. LEXIS 730 (1899); Marcrum v. Washington, 109 Ga. 296, 34 S.E. 585, 1899 Ga. LEXIS 640 (1899); Hirsch Bros. & Co. v. Stinson, 112 Ga. 348, 37 S.E. 365, 1900 Ga. LEXIS 154 (1900). See also Sheppard v. Davis, 22 Ga. App. 733, 97 S.E. 262, 1918 Ga. App. LEXIS 722 (1918). Resort to equity unnecessary. - Where the widow of an insolvent intestate proceeds to obtain an exemption of personal property, there is no necessity to resort to equity to prevent the property from being seized and sold by a creditor of the intestate pending the filing and record of her schedule, or after such filing and record. Her remedy to recover the property from one having unlawful possession is by possessory warrant in a proper case,
or by trover. Morgan v. Community Loan & Inv. Co., 195 Ga. 675, 25 S.E.2d 413, 1943 Ga. LEXIS 550 (1943). Amendment of schedule. - If the applicant fails to describe the property with sufficient certainty to identify it the applicant may amend the schedule by giving a sufficiently accurate and definite description. Redding v. Lennon, 112 Ga. 491, 37 S.E. 711, 1900 Ga. LEXIS 214 (1900). A void schedule may be disregarded by an officer, and the property therein set forth be levied on. Kendall v. Parker, 146 Ga. 260, 91 S.E. 31, 1916 Ga. LEXIS 699 (1916). Fullness of schedule question for jury. - See Mims v. Lockett, 20 Ga. 474, 1856 Ga. LEXIS 86 (1856). Description held sufficient. - See McNair v. Fortner, 149 Ga. 354, 149 Ga. 654, 101 S.E. 772, 1920 Ga. LEXIS 357 (1920). Description held insufficient. - See Barfield v. Reynolds Banking Co., 40 Ga. App. 305, 40 Ga. App. 335, 149 S.E. 302, 1929 Ga. App. LEXIS 142 (1929).
RESEARCH REFERENCES Am. Jur. 2d. 31 Am. Jur. 2d, Exemptions, § 128 et seq. 40 Am. Jur. 2d, Homesteads, § 77 et seq.
ALR. Homestead right of cotenant as affecting partition, 140 A.L.R. 1170.