TITLE 53 WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Section 11. Proceedings in Probate Court, 53-11-1 through 53-11-11.

ARTICLE 3 NONDOMICILIARIES

53-11-2. "Guardian" defined; persons represented; appointment; successors; guardian named in petitions.

As used in this Code section, the term "guardian" means the guardian ad litem appointed by the probate court who may represent a single party or more than one party or a class of parties with common or nonadverse interests; provided, however, that the court may determine for the purpose of the particular proceeding that the natural guardian, if any, or the testamentary guardian, if any, or the duly constituted guardian of the property, if any, or the duly constituted guardian of the person, if any, has no conflict of interest and thus may represent for the purpose of the proceeding a party who is not sui juris, who is unborn, or who is unknown.
When a party to a proceeding in the probate court is not sui juris, is unborn, or is unknown, that party shall be represented in the proceeding by a guardian. Service upon or notice to a guardian shall constitute service upon or notice to the party represented and no additional service upon or notice to such party shall be required. Waivers, acknowledgments, consents, answers, objections, or other documents executed by the guardian shall be binding upon the party represented.
Whenever a guardian ad litem is appointed, the court may limit the appointment or may at any time for cause appoint a successor. Unless the appointment is limited by the court, the guardian ad litem first appointed with respect to any proceeding involving the administration of the estate shall continue to serve with respect to such proceeding on behalf of the party represented until a successor is appointed, the party represented becomes sui juris, or the court terminates the appointment.
In every petition filed in the probate court, the petitioner shall specify the name of each party who requires a guardian and the name and address of any person who is acting as guardian of the party. A copy of the letters appointing the guardian shall be attached to the petition or the petition shall allege such facts as shall show the authority of such guardian to act; provided, however, that the probate court may take judicial notice of the issuance of such letters or of such authority.

(Code 1981, §53-11-2, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 27; Ga. L. 1998, p. 1586, § 44.)

Cross references.

- Appointment of guardians ad litem generally, § 9-11-17(c).

Guardians ad litem and appraisers for year's support in probate court proceedings, Uniform Rules for the Probate Courts, Rule 23.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

COMMENT

This section clarifies that, in all proceedings relating to testate or intestate estates or Year's Support, parties who are legally incapable of acting on behalf of themselves shall be represented by a guardian. The term "guardian" means a guardian ad litem appointed by the probate judge for the proceeding. However, the probate judge may determine that someone who is already acting as guardian (a natural guardian, guardian of the property, or guardian of the person) may represent the party in the proceeding if the interests of the guardian and the party are not in conflict. Some examples of cases where the interests of the guardian and the party represented may be in conflict include cases when the guardian is also a personal representative of the decedent, the propounder of any purported will of the decedent, an heir, a beneficiary under the will of the decedent, or other interested party or cases where the probate court finds for any reason that the interests of the guardian for purposes of a particular proceeding are not common and nonadverse to the interests of the party represented. This section does not abrogate any provision of Title 29, such as the provisions of Section 29-4-2(d) requiring the natural guardian to post bond in certain cases where a minor's claim arises under a personal injury lawsuit. All petitions filed in the probate court will include the names of those parties who require a guardian and will indicate the identity of any person who is already acting as guardian. A copy of the letters of guardianship or other evidence of authority should be attached to or included in the petition. However, the probate court may take judicial notice of these letters.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3860, and former Code 1933, § 113-608, are included in the annotations for this Code section.

Appointment of guardian.

- Probate court properly reappointed an individual to act as guardian ad litem of unknown heirs in connection with a decedent's will and a declaratory judgment action commenced by a disqualified beneficiary, as there was nothing that prohibited such appointment, and the unknown heirs were entitled to representation pursuant to O.C.G.A. § 53-11-2(b). In re Estate of Robertson, 271 Ga. App. 785, 611 S.E.2d 680 (2005).

Trial court did not err in refusing to declare an order appointing a guardian ad litem void based on the appointment occurring before the probate court judge was recused from the case as only orders made by the probate court judge after the recusal were null and void and the probate court judge appointed the guardian ad litem before the recusal motion was filed. In re Estate of Sands-Kadel, 292 Ga. App. 343, 665 S.E.2d 46 (2008).

Settlement agreement set aside.

- Because the probate court erred in finding that a settlement agreement between heirs to their decedent parent's estate was enforceable, given that a disabled sibling's interests were not represented, and no evidence was presented that a non-disabled sibling assented to or participated in the agreement, the court erred in approving the agreement, warranting a finding that the agreement be set aside. Freeman v. Covington, 282 Ga. App. 113, 637 S.E.2d 815 (2006).

Cited in Summerour v. Fortson, 174 Ga. 862, 164 S.E. 809 (1932); Griffin v. Suber, 191 Ga. 269, 12 S.E.2d 621 (1940).

RESEARCH REFERENCES

Am. Jur. 2d.

- 20 Am. Jur. 2d, Courts, § 98. 39 Am. Jur. 2d, Guardian and Ward, § 13. 80 Am. Jur. 2d, Wills, § 986.

C.J.S.

- 43 C.J.S., Infants, § 321 et seq. 95 C.J.S., Wills, §§ 536, 537.

ALR.

- Factors considered in making election for incompetent to take under or against will, 3 A.L.R.3d 6.

Time within which election must be made for incompetent to take under or against will, 3 A.L.R.3d 119.

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