O.C.G.A.
O.C.G.A.

O.C.G.A. § 53-2-40 (2019)

Petition

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) When an individual has died intestate and there has been no personal representative appointed in this state, any heir of the decedent may file a petition praying for an order that no administration is necessary. The petition shall be filed in the probate court of the county of the domicile of the decedent, if the decedent was domiciled in this state, or in the county in which real property is located, if the decedent was not domiciled in this state. (b) The petition shall show: the name and domicile of the decedent; the names, ages or majority status, and domicile of the heirs of the decedent; a description of the property in this state owned by the decedent; that the estate owes no debts or that there are known debts and all creditors have consented or will be served as provided in Chapter 11 of this title; and that the heirs have agreed upon a division of the estate among themselves. The agreement containing original signatures of all the heirs, attested to by a clerk of the probate court or a notary public, shall be attached to the petition. Property subject to an outstanding security deed or agreement may be subject to this proceed257

ing only if the holder of the security deed consents or is served and makes no objection. (c) The personal representative of a deceased heir is authorized to agree to the division on behalf of that heir. (d) In any case involving the approval of a petition for an order that no administration is necessary, where there is an interest in real property, the court shall file, within 30 days of granting such petition, a certified copy of the order granting the petition that no administration is necessary in each county in this state in which the deceased owned real property, to be recorded in the deed records of the county and indexed under the name of the deceased in the grantor index. Such order shall be accompanied by the same fee for filing deeds with the clerk of the superior court. The filing fee and any fee for the recording of such order shall be taxed as costs to the estate. The certified copy of the order granting the petition that no administration is necessary shall set forth: (1) The date of the order granting such petition; (2) The name and address of the deceased; (3) The interest in the property acquired by each party; and (4) The name and address of all parties that take title to the real property pursuant to the order issued by the court.

History

Code 1981, § 53-2-40, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 5; Ga. L. 1998, p. 1586, § 10; Ga. L. 2008, p. 715, § 8/SB 508.

Annotations

Law reviews. - For article discussing

methods of summary distribution and settlement of decedent’s estate, see 6 Ga. L. Rev. 74 (1971). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

COMMENT This section carries over former OCGA Sec. 53-10-1 with the modifications that the petition must include a copy of the agreement for division of property and must state either that the estate owes no debts or that there are known debts and all the creditors have consented or will be served. The petition must be filed in the county of the decedent’s domicile rather than the county of residence as required under former OCGA Sec. 53-10-1. Subsection (c) allows the personal representative of a deceased heir to agree to the division on behalf of that heir. (See Code section 53-11-2, which authorizes the guardian of an heir to consent on behalf of the heir.) JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION ORDER DISPENSING WITH ADMINISTRATION GENERALLY PETITION JURISDICTION

General Consideration 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). Order Dispensing with Administration Generally Outstanding order dispensing with administration of decedent’s estate would not be bar to probate of decedent’s will. Roughton v. Jones, 225 Ga. 774, 171 S.E.2d 536 (1969) (decided under Ga. L. 1958, p. 355, § 1). 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). Petition 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). Jurisdiction 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).

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

Am. Jur. Pleading and Practice Forms. - 10A Am. Jur. Pleading and

Practice Forms, Executors and Administrators, § 925. C.J.S. - 26B C.J.S., Descent and Dis-

tribution, § 78. 33 C.J.S., Executors and Administrators, §§ 7, 8, 11, 13.

Notes of Decisions
Cited in 8 cases, 1983–2006 · leading case: McCormick v. Jeffers, 637 S.E.2d 666 (Ga. 2006).
Sort: Relevance Newest Treatment
McCormick v. Jeffers, 637 S.E.2d 666 (Ga. 2006). · cites it 4× “I am authorized to state that Justices Carley and Hines join this dissent. NOTES [1] See Heard v.”
In re Est. of Brannon, 441 S.E.2d 248 (Ga. 1994). · cites it 5× “Rather, they assert that since the signature of the testatrix and the signatures of the witnesses appear on separate pages, an opportunity for fraud is presented which renders the will violative of the signing and attestation requirements of OCGA § 53-2-40.”
Wells v. Jackson, 453 S.E.2d 690 (Ga. 1995). · cites it 2× “The probate court found the writing offered for probate met the requirements of OCGA § 53-2-40 and admitted it to probate in solemn form.”
Kirksey v. Teachers' Ret. Sys., 302 S.E.2d 101 (Ga. 1983). · cites it 2× “Redfearn, Wills, Georgia, § 6 (4th Ed.). It is also true that no particular form of words is necessary to constitute a will.”
Devine v. State, 494 S.E.2d 87 (Ga. Ct. App. 1997). “” See also OCGA- §§ 53-2-40; 53-2-40.1. Moreover, at the beginning of the hearing, DeVine’s counsel stated, “We’ll stipulate and agree that [Genelle Helms’s will] was not signed in the presence of a notary public.”
Rawlins v. Hulme, 425 S.E.2d 861 (Ga. 1993). · cites it 2× “The photocopied will bore an original signature purported to be that of the testator, but was not attested to as required by OCGA § 53-2-40. There is no evidence that anyone saw the testator sign the 1981 will.”
Zeh v. Griffin, 359 S.E.2d 899 (Ga. 1987). · cites it 2× “OCGA § 53-2-40 et seq. OCGA § 53-3-40 provides that “[a] 11 wills conveying property in this state, executed by persons residing outside this state, shall be held and treated as foreign wills.”
Bagwell v. Est. of Gibson, 374 S.E.2d 732 (Ga. 1989). · cites it 2× “OCGA § 53-2-40 provides, in pertinent part: “A will shall be attested and subscribed in the presence of the testator by two or more competent witnesses.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.