TITLE 53 WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Section 1. General Provisions, 53-1-1 through 53-1-20.

ARTICLE 1 IN GENERAL

53-1-2. Definitions.

As used in this chapter and Chapters 2 through 11 of this title, the term:

"Administrator" means any person appointed and qualified to administer an intestate estate, including an intestate estate already partially administered by an administrator and from any cause unrepresented.
"Administrator with the will annexed" means any person, other than an executor, appointed and qualified to administer a testate estate, including a testate estate already partially administered and from any cause unrepresented.
"Beneficiary" means a person, including a trust, who is designated in a will to take an interest in real or personal property.
"Codicil" means an amendment to or republication of a will.
"County administrator" means any individual or individuals appointed by the probate court of the county and qualified to represent an estate that is unrepresented and unlikely to be represented.
"Descendants" means the lineal descendants of an individual including those individuals who are treated as lineal descendants by virtue of adoption.
"Executor" means any person nominated in a will who has qualified to administer a testate estate, including a person nominated as alternative or successor executor.
"Guardian" means the guardian ad litem or representative described in Code Section 53-11-2 who represents one or more parties to a probate court proceeding who are not sui juris, are unborn, or are unknown.
"Heirs" means those one or more individuals who survive the decedent and are determined under the rules of inheritance to take the property of the decedent that is not disposed of by will.
"Nominated executor" means any person nominated in the will to serve as executor who has not yet qualified to serve as executor.
"Person" means an individual, corporation, partnership, association, joint-stock company, business trust, unincorporated organization, limited liability company, or two or more persons having a joint or common interest, including an individual or a business entity acting as a personal representative or in any other fiduciary capacity.
"Personal representative" means any administrator, administrator with the will annexed, county administrator, or executor.
"Qualified" means that a personal representative has taken the oath, posted any required bond, and been issued letters of administration or letters testamentary, as provided in this title.
"Sui juris" means an individual is age 18 or over and not suffering from any legal disability.
"Temporary administrator" means any person granted temporary letters of administration upon an unrepresented estate.
"Testamentary gift" means the interest in real or personal property which a beneficiary is designated to take in a will.
"Will" means the legal declaration of an individual's testamentary intention regarding that individual's property or other matters. Will includes the will and all codicils to the will.

(Code 1981, §53-1-2, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 6.)

Cross references.

- Filing of wills by testators in office of judge of probate court, § 15-9-38.

Law reviews.

- For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For article, "Transfer-on-Death Securities Registration: A New Title Form," see 21 Ga. L. Rev. 789 (1987). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

COMMENT

Former OCGA Title 53 contained no general definitions section. This section combines definitions that appeared in various sections of former Title 53 as well as adding new definitions. Subsection (a) includes as an "administrator" an "administrator de bonis non" of an intestate estate and subsection (b) includes as an "administrator with the will annexed" an "administrator de bonis non" of a testate estate. The concept of "administrator de bonis non" appeared in former OCGA Secs. 53-6-30 and 53-6-31. The term "beneficiary" in subsection (c) is used to replace the words "legatee" and "devisee" that appeared in former Title 53. The term is defined somewhat differently in OCGA Sec. 53-12-2 for use throughout Chapter 12 (Trusts). The definition of "codicil" that appeared in former OCGA Sec. 53-2-5 is modified and placed in subsection (d). Subsection (e) carries forward the definition of "County Administrator" that appeared in former OCGA Sec. 53-6-90. Former OCGA Title 53 contained no definition of the term "descendants". This term, which is now defined in subsection (f), is used to replace the term "lineal descendants" in former Title 53. Subsection (g) includes as an "executor" any person who is nominated in the will, whether that person is the executor or a successor executor. Subsection (i) distinguishes a "nominated executor" as one who has been nominated in the will but has not yet qualified. Former OCGA Title 53 contained no definition of the terms "guardian" or "heirs". The term "heirs," as defined in subsection (i), is used to replace the term "heirs at law" from former Title 53. Subsection (k) contains the same definition of "person" that appears in the Georgia Trust Code at Sec. 53-12-2(5), with the addition of limited liability companies. Subsection (l) introduces the term "Personal Representative," which includes administrators, administrators with the will annexed, county administrators and executors, but does not include temporary administrators. In order to meet the definitions of subsections (a), (b), (e), (g), and (o), a person must have "qualified" to serve as a personal representative, as defined in subsection (m). Subsection (m) provides that a personal representative has "qualified" upon the taking of the oath, the issuance of appropriate letters and the posting of any required bond. The term "sui juris" in subsection (n) describes an individual who is of legal age and suffering under no other legal disability. Subsection (o) carries forward portions of the definition of "Temporary Administrator" that appeared in former OCGA Sec. 53-6-34. The term "testamentary gift" in subsection (p) is used to replace the terms "legacy" and "devise". The definition of the term "will" in subsection (q) appeared in former OCGA Sec. 53-2-1. The definition is modified to add that the will may speak of matters other than the disposition of property (for example, the appointment of a guardian for minor children of the decedent) and that, unless the context otherwise requires, the "will" includes the will and all codicils to it.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3827, former Code 1933, §§ 113-101 and 113-1207, and former O.C.G.A. § 53-6-34 are included in the annotations for this Code section.

Powers granted.

- Former statute empowered a temporary administrator to collect and take care of effects of deceased until permanent letters of administration are granted. Kelly v. Citizens & S. Nat'l Bank, 160 Ga. App. 405, 287 S.E.2d 343 (1981) (decided under former Code 1933, § 113-1207).

Statutory consistency.

- There is no inconsistency between O.C.G.A. § 44-12-151, requiring selection of remedies, and former O.C.G.A. §§ 53-6-34 and53-7-93, requiring collection and preservation of assets of an estate and just and timely payment of the debts of an estate. Howard v. Parker, 163 Ga. App. 159, 293 S.E.2d 548 (1982) (decided under former O.C.G.A. § 53-6-34).

Attorney's fees.

- Temporary administrator's right to attorney fees may not extend beyond fees for such services as may have been necessary to assist the administrator in the securing of temporary letters of administration and the collection and preservation of the assets of the estate. Hudson v. Abercrombie, 258 Ga. 729, 374 S.E.2d 83 (1988) (decided under former O.C.G.A. § 53-6-34).

Definition of a will makes disposition of property an indispensable requisite under Georgia law and to do this a legatee is essential. Lawson v. Hurt, 217 Ga. 827, 125 S.E.2d 480 (1962) (decided under former Code 1933, § 113-101).

When the sole legatee died prior to the death of the testator, there was no legatee and consequently no disposition of property by the instrument offered for probate. Lawson v. Hurt, 217 Ga. 827, 125 S.E.2d 480 (1962) (decided under former Code 1933, § 113-101).

Cited in Dameron v. Southern Ry., 44 Ga. App. 444, 161 S.E. 641 (1931); Chance v. Buxton, 177 F.2d 297 (5th Cir. 1949); Jenkins v. Shuften, 206 Ga. 315, 57 S.E.2d 283 (1950); Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954); Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966); Lavender v. Wilkins, 237 Ga. 510, 228 S.E.2d 888 (1976); Howington v. Howington, 242 Ga. 767, 251 S.E.2d 514 (1979); Guyett v. Guyett, 160 Ga. App. 622, 287 S.E.2d 632 (1981); Deller v. Smith, 250 Ga. 157, 296 S.E.2d 49 (1982); Smith v. Watts, 181 Ga. App. 524, 352 S.E.2d 840 (1987).

RESEARCH REFERENCES

Am. Jur. 2d.

- 9 Am. Jur. 2d, Wills, § 2.

10A Am. Jur. Pleading and Practice Forms, Executors and Administrators, §§ 842, 896. 25 Am. Jur. Pleading and Practice Forms, Wills, § 2.

ALR.

- May instrument inter vivos operate also as a will, or part of will, 45 A.L.R. 843.

Notation on note or securities as a will or codicil, 62 A.L.R. 292.

Suppression of will, or agreement for its suppression, as contrary to public policy or to statute in that regard, 117 A.L.R. 1249.

Testamentary character of memorandum or other informal writing not testamentary on its face regarding ownership or disposition of specific personal property, 117 A.L.R. 1327.

What testamentary language passes United States bonds, 100 A.L.R.2d 1004.

Determination whether will is absolute or conditional, 1 A.L.R.3d 1048.

Electronic tape recording as will, 42 A.L.R.4th 176.

What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary, 3 A.L.R.5th 590.

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