TITLE 53 WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Section 2. Descent and Distribution, 53-2-1 through 53-2-51.

ARTICLE 3 DISTRIBUTION OF ESTATE IN KIND

53-2-30. Authority of administrator; method of distribution provided for in will.

An administrator may distribute all or a portion of an intestate estate in kind in a distribution that is pro rata as to each asset.
An administrator may distribute all or a portion of an intestate estate in kind in a distribution that is not pro rata as to each asset only upon the written consent of all the heirs or upon an order of the probate court made pursuant to a petition filed by an heir or the administrator.
Nothing in this Code section shall be construed as limiting or restricting the method of distribution provided for in a will or as requiring the approval of the probate court for a distribution or division in kind made pursuant to the directions in a will. In all cases where the will directs or authorizes a distribution or division in kind but fails to direct specifically how or by whom the distribution or division in kind is to be made, it shall be the duty and authority of the executor or administrator with the will annexed to make the distribution or division in kind.

(Code 1981, §53-2-30, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section replaces former OCGA Sec. 53-4-11. Subsection (c) carries forward the provisions of former OCGA Sec. 53-4-11(b). Two options for distributions in kind are available under this section. The administrator may make the distribution in kind without the consent of the heirs or a court order if the distribution is made pro rata as to each asset. If the distribution in kind is to be made in a manner that is not pro rata as to each asset, the administrator may do so only if all the heirs consent or pursuant to an order from the probate court. The procedure for filing a petition for such order is described in the subsequent Code sections.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Laws 1812, Cobb's 1851 Digest, p. 292, Code 1863, § 2542, Code 1868, § 2543, Code 1873, § 2584, Code 1882, § 2584, Civil Code 1895, § 3479, Civil Code 1910, § 4057, Code 1933, § 113-1018, and former O.C.G.A. § 53-4-11 are included in the annotations for this Code section.

Sections which carry provisions into effect.

- Former Code 1933, §§ 1019 and 1020 provided the machinery for carrying into effect the provisions of former Code 1933, § 113-1018. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Two features of former Code 1933, § 113-1018 were especially to be noted: (1) the application may be made by the "representative" of the estate - it is clearly intended to embrace executors as well as administrators; and (2) the statute contemplates a proceeding for the distribution of the estate. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

This statutory proceeding is really a legal substitute for the final division and final settlement of accounts by an administrator or an executor. It constitutes the last step in winding up an estate with the stamp of judicial approval on the distribution of the estate as made by the representative. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Proceedings under this statute were not in the nature of a partition of specific property, but contemplated a final and complete distribution of the assets of the estate. The devisees and legatees are to receive their share, and all of their share of the estate not previously delivered to them. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Cited in Cunningham v. Schley, 34 Ga. 395 (1866); Southwestern R.R. v. Thomason, 40 Ga. 408 (1869); Hooper v. Howell, 50 Ga. 165 (1873); Rogers v. Dickey, 117 Ga. 819, 45 S.E. 71 (1903); Alaculsey Lumber Co. v. Flemister, 146 Ga. 310, 91 S.E. 104 (1916); Robinson v. Georgia Sav. Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939); McMullen v. Carlton, 192 Ga. 282, 14 S.E.2d 719 (1941); Matson v. Crowe, 193 Ga. 578, 19 S.E.2d 288 (1942); Ashford v. Van Horne, 276 Ga. 636, 580 S.E.2d 201 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, §§ 1, 2, 13. 31 Am. Jur. 2d, Executors and Administrators, §§ 914, 945, 946, 972, 979, 985 et seq.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 600, 605, 611, 614, 628, 644.

ALR.

- Partition: division of building, 28 A.L.R. 727.

Probate of will as condition precedent to suit for partition by devises, 141 A.L.R. 1311.

Right to partial distribution of estate or distribution of particular assets, prior to final closing, 18 A.L.R.3d 1173.

Lack of final settlement of intestate's estate as affecting heir's right to partition of realty, 92 A.L.R.3d 473.

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