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(Code 1981, §53-1-12, enacted by Ga. L. 1996, p. 504, § 10.)
- For article, "The Time Gap in Wills: Shifting Assets and Shrinking Estates - Obsolescence and Testamentary Planning in Georgia," see Ga. L. Rev. 649 (1972). For article discussing concept of advancements, see 10 Ga. L. Rev. 447 (1976). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004).
This section replaces former OCGA Sec. 53-4-51. Under subsection (a), in the event of the satisfaction of a specific testamentary gift, the beneficiary receives no property in replacement of that gift. (This subsection reflects the rule of ademption by satisfaction that appeared in former OCGA Sec. 53-2-105.) Under subsection (b), if the advancement is of a demonstrative or general testamentary gift, the amount of the advancement is charged against any amount the beneficiary is slated to receive under the will. Subsection (c) outlines the traditional "hotchpot" method of taking advancements into account. This method is applied in the case of a beneficiary of a residuary share of the transferor's estate or an heir. The "hotchpot" is calculated by adding to the value of the transferor's residuary or intestate estate the value of all advancements made by the transferor except advancements of demonstrative or general testamentary gifts and satisfactions. Then each recipient's "distributable share" is determined. If an advancement is less than the recipient's distributable share of the estate, the value of the advancement must be charged against any share the recipient is due to receive. For example, suppose the recipient (R) received an advancement valued at $50,000. The transferor dies intestate, survived only by three children (A, B, and R) and with an intestate estate of $250,000. The value of R's advancement will be added back to the value of the estate, bringing the value of the "hotchpot" estate to $300,000. Under the laws of intestacy, each of the children is due to receive 1/3 of the estate ("distributable shares" of $100,000 each). However, since R has already received $50,000 as an advancement, R's distributable share of $100,000 is charged with the advancement so that R receives only an additional $50,000 from the probate estate. A and B each receive $100,000. If the recipient's advancement equals or exceeds the value of the recipient's distributable share, then the advancement is ignored and the recipient receives nothing further from the estate. For example, suppose R received an advancement of $150,000 and the transferor died intestate with an estate of $180,000. The hotchpot estate would equal $330,000 ($180,000 + $150,000), thus entitling each heir to a "distributable share" of $110,000. However, since R has already received $150,000, the value of the advancement is not brought into the hotchpot estate. R receives nothing further from the estate, and A and B split the $180,000 estate evenly between themselves.
- In light of the similarity of the statutory provisions, decisions under Ga. L. 1853-54, p. 41, §§ 1, 2, former Code 1863, § 2540, former Code 1868, § 2541, former Code 1873, § 2582, former Code 1882, § 2582, former Civil Code 1895, § 3477, former Civil Code 1910, § 4055, and former Code 1933, § 113-1016, are included in the annotations for this Code section.
- In an accounting under this statute when the main object of the litigation is to ascertain and settle authoritatively the amount which each distributee has been advanced by the intestate, the verdict should find the several amounts specifically. The law, and not the jury, determines whether advancements shall be accounted for. Andrews v. Halliday, 63 Ga. 263 (1879) (decided under former Code 1873, § 2582).
There are only two ways by which the scheme of equality among the heirs may be upset. The first, of course, is by the making of a will on the part of the ancestor providing for a distribution of the ancestor's estate in a manner other than that set forth by law; and, the second is by a valid and binding contract executed between the ancestor and the heir which clearly shows a meeting of the minds between them acknowledging on the part of the heir receipt in full for the heir's prospective share of the ancestor's estate. Such a contract when entered into is binding and enforceable. Cassedy v. Bland, 99 Ga. App. 34, 107 S.E.2d 697 (1959) (decided under former Code 1933, § 113-1016).
Cited in Bransford v. Crawford, 51 Ga. 20 (1874); Hobby v. Ford, 149 Ga. 176, 99 S.E. 624 (1919); Treadwell v. Everett, 185 Ga. 454, 195 S.E. 762 (1938); Beard v. Beard, 197 Ga. 487, 29 S.E.2d 595 (1944); Harrison v. Barber, 200 Ga. 225, 36 S.E.2d 662 (1946).
- 3 Am. Jur. 2d, Advancements, § 50 et seq.
- 26B C.J.S., Descent and Distribution, § 105.
- Recovery of excess of advancement over distributable share in estate, 46 A.L.R. 1428.
Doctrine of "advancements" as applicable to transfer by testator to devisee or legatee after execution of will, 142 A.L.R. 524.
Will charging distributee's share with advancement to or debt owing by him as invoking doctrine of hotchpot, 165 A.L.R. 899.
Satisfaction or ademption of general legacy by inter vivos gift, transfer, or payment to the legatee or another, 26 A.L.R.2d 9.
Total Results: 1
Court: Supreme Court of Georgia | Date Filed: 1984-03-14
Citation: 313 S.E.2d 683, 252 Ga. 279
Snippet: based on the Act inappropriate. We agree. OCGA § 53-11-2 (Code Ann. § 113-2902), the applicable portion