Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1958, p. 355, § 1, and former O.C.G.A. § 53-10-1 are included in the annotations for this Code section.

Counteraffidavit.

- Duty of an heir opposing a petition for an order dispensing with administration to file a counteraffidavit in opposition to a motion for summary judgment on the petition arises only after the movant has made a prima facie showing of entitlement to judgment. Echols v. Hudson, 189 Ga. App. 780, 377 S.E.2d 542 (1989) (decided under former O.C.G.A. § 53-10-1).

Fact questions preclude summary judgment.

- Fact questions, precluding summary judgment on a petition for an order dispensing with administration, existed when the record showed only that there was an estate consisting of a checking account and unidentified household furnishings, that there were debts owed by the decedent, and that the heirs had not agreed amicably to a division of the assets. Echols v. Hudson, 189 Ga. App. 780, 377 S.E.2d 542 (1989) (decided under former O.C.G.A. § 53-10-1).

Cited in Bell v. Liberty Mut. Ins. Co., 108 Ga. App. 173, 132 S.E.2d 538 (1963); Clark v. Perrin, 224 Ga. 307, 161 S.E.2d 874 (1968); Babb v. Potts, 183 Ga. App. 785, 360 S.E.2d 44 (1987).

Cannot support plea of res judicata.

- Probate court's order on petition for no administration necessary cannot support plea of res judicata because it is subject to trial de novo in the superior court; i.e., the probate court's order is not final. Hurst v. Gray, 251 Ga. 856, 310 S.E.2d 524 (1984) (decided under former O.C.G.A. § 53-10-1).

Party who has previously applied for and obtained order dispensing with administration of an estate, an essential condition precedent being "that the estate of the decedent owes no debts," is thereafter precluded from asserting any claim the party may have had against the estate for debts which the party voluntarily paid. Shaw v. Davis, 119 Ga. App. 801, 168 S.E.2d 853 (1969) (decided under Ga. L. 1958, p. 355, § 1).

Omissions or mistakes cured by amendment.

- Statutory requirements that the petition allege the names, ages, and residences of the heirs, and the existence of an agreement for division, are matters which may be cured by amendment if they are omitted or improperly stated. Saturday v. Saturday, 113 Ga. App. 251, 147 S.E.2d 798 (1966) (decided under Ga. L. 1958, p. 355, § 1).

Presumption of agreement for amicable division.

- Bringing of a petition under this statute by those who allege themselves to be all of the heirs at law of a deceased gives rise to a presumption that they have reached an agreement for an amicable division of the estate among themselves, whether it be alleged in the petition or not. Saturday v. Saturday, 113 Ga. App. 251, 147 S.E.2d 798 (1966) (decided under Ga. L. 1958, p. 355, § 1).

Basis for proceeding in probate court.

- Intestacy of a deceased person and the fact that no permanent administration in this state has been had upon the estate are the bases for the proceeding in the court of ordinary (now probate court) to dispense with the administration of an estate. Roughton v. Jones, 225 Ga. 774, 171 S.E.2d 536 (1969) (decided under Ga. L. 1958, p. 355, § 1).

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 6, 8 et seq.

10A Am. Jur. Pleading and Practice Forms, Executors and Administrators, § 925.

C.J.S.

- 26B C.J.S., Descent and Distribution, § 78. 33 C.J.S., Executors and Administrators, §§ 7, 8, 11, 13.