O.C.G.A.

O.C.G.A. § 53-2-51 (2019)

Procedure

✓ 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) If no person has appeared and claimed to be an heir within four years from the date letters of any kind on an intestate decedent’s estate were granted, the personal representative shall petition the probate court of the county in which the letters were granted for determination that property has escheated to the state. Such a petition shall set forth the full name of the decedent, the date of death, the fact that no person has appeared and claimed to be an heir, and the property of the estate which may have escheated to the state. (b) Upon filing of the petition, the probate court shall issue a citation as provided Chapter 11 of this title, requiring the heirs, if any, to file any objection to the petition by a date that is at least 60 days from the date of the citation, and shall order notice by publication to all heirs of the decedent as provided in Code Section 53-11-4. (c) If no individual files objection as an heir who is entitled to the property on or before the date set in the citation, the court shall order the property to be paid over and distributed to the county board of education to become a part of the educational fund. (d) If an individual files objection as an heir who is entitled to property, such claim shall be tried as other actions before the court. In such case, no property shall be paid over or distributed to the county board of education until the claim is determined in such manner as to establish that any individual making the claim is not entitled to the property. (e) When property is paid over or distributed to a county board of education, the administration of the estate shall be terminated following a final return and the granting of a petition for discharge.

(f ) The proceedings shall be conclusive upon and shall bind all the heirs of the estate. (g) All expenses incurred in the administration of such proceedings shall be paid from the property or proceeds of the estate.

History

Code 1981, § 53-2-51, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 11.

Annotations

COMMENT The sections in this Chapter replace former OCGA Secs. 44-5-190 through 44-5-198. The sections provide that an escheat may occur after four years from the date letters of administration are granted, rather than five years, as provided under former OCGA Sec. 44-5-191. These sections also provide that, once it has been determined in the appropriate manner that an escheat has occurred, the determination shall be binding on all heirs. Under former OCGA Sec. 44-5-194, an heir could file a claim up to three years following the escheat of property to the County Board of Education. OCGA Sec. 44-5-199, which deals with the distribution of property if spouses die intestate within six months of each other, has been modified and appears at Code Sec. 53-2-8. JUDICIAL DECISIONS No express statement found. - Because the only references to mutuality in a joint will under O.C.G.A. § 53-4-31 were in the title of the instrument and in the attestation clause, those references were insufficient to constitute either an ‘‘express statement’’ required by O.C.G.A. § 53-2-51, or an express written ‘‘contract’’ requirement of O.C.G.A. § 53-4-30,

and there was no clear and definite agreement so as to trigger the fraud exception; accordingly, the surviving wife’s deed of gift of real property to a nephew was not precluded, and the will was revocable because there was no express-written contract to the contrary. Hodges v. Callaway, 279 Ga. 789, 621 S.E.2d 428 (2005).

CHAPTER 3 YEAR’S SUPPORT Sec.

Sec. Preference and entitlement. Events barring right to support. Provision in will in lieu of support; election. ‘‘Homestead’’ defined; taxes and tax liens. Filing of petition. Issuance of citation and publication of notice; mailing of petition to tax commissioner. Hearing and determination. Minor children by individuals other than surviving spouse. Vesting of title to property set apart. Property inside or outside county. Awarding interest in real property. Fees. Sale or conveyance of property by personal representative or

Cross references. - Prosecution by surviving spouse, children, and others of action concerning chose in action assigned by deceased plaintiff to spouse, children, and others as part of year’s support, § 9-2-30. Editor’s notes. - This chapter was effective January 1, 1998, to the extent that no vested rights of title, year’s support, succession, or inheritance are impaired, as provided by the version of Code Section 53-1-1 enacted by Ga. L. 1996, p. 504, § 10, as amended by Ga. L. 1997, p. 1352, § 1. Ga. L. 1996, p. 504, § 10, effective January 1, 1998, repealed the Code sections formerly codified at this chapter, and enacted the current chapter. The former chapter consisted of §§ 53-3-1 through 53-3-80, and was based on Laws 1792, Cobb’s 1851 Digest, p. 307; Laws 1805, Cobb’s 1851 Digest, p. 283; Laws 1807, Cobb’s 1851 Digest, pp. 315, 1129; Laws

temporary administrator prior to award. Real property subject to option to purchase or contract to sell. Conveyance, contract, or lien made by surviving spouse or guardian. Real property subject to purchase money mortgage. Personal property subject to mortgage or other security interest. Landlord’s lien on crops. Conveyance or encumbrance by surviving spouse of property set aside; effect. Conveyance or encumbrance by surviving spouse of property set aside; approval of probate court. Appointment of temporary administrator.

1810, Cobb’s 1851 Digest, pp. 284, 316; Laws 1838, Cobb’s 1851 Digest, p. 285; Laws 1845, Cobb’s 1851 Digest, p. 348; Ga. L. 1855-56, p. 233, § 14; Ga. L. 1859, p. 33, §§ 3-5; Orig. Code 1863, §§ 2390-2404, 2406, 2448, 2449; Ga. L. 1866, p. 66, § 1; Code 1868, §§ 2386-2400, 2402, 2444, 2445; Code 1873, §§ 2421-2435, 2437, 2480, 2481; Ga. L. 1878-79, p. 146, § 1; Code 1882, §§ 2421-2426, 2428-2435a, 2437, 2480; Ga. L. 1894, p. 102, §§ 1, 4-9; Civil Code 1895, §§ 3279-3292, 3294, 3296-3306, 3350, 3351; Ga. L. 1908, p. 85, §§ 1, 2; Civil Code 1910, §§ 3853-3866, 3868, 3870-3882, 3926, 3927; Code 1933, §§ 113-601 through 113-618, 113-620.1, 113-701 through 113-710; Ga. L. 1943, p. 423, § 1; Ga. L. 1945, p. 142, § 2; Ga. L. 1945, p. 401, § 1; Ga. L. 1946, p. 83, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 535, § 1; Ga. L. 1955, p. 217, § 1; Ga. L. 1958, p. 657, §§ 4-9; Ga. L. 1959, p. 136, §§ 2-4;

Ga. L. 1961, p. 558, §§ 1, 3, 4; Ga. L. 1966, p. 455, §§ 1, 2; Ga. L. 1967, p. 28, §§ 1-5; Ga. L. 1975, p. 764, § 1; Ga. L. 1976, p. 640, § 1; Ga. L. 1978, p. 1605, § 1; Ga. L. 1983, p. 511, § 1; Ga. L. 1984, p. 658, § 1; Ga. L. 1984, p. 681, § 1; Ga. L. 1984, p. 834, §§ 3, 4; Ga. L. 1985, p. 149, § 53; Ga. L. 1985, p. 1650, §§ 1, 2; Ga. L. 1986, p. 436, § 1; Ga. L. 1986, p. 982, §§ 18, 19; Ga. L. 1990, p. 350, § 1.1; Ga. L. 1991, p. 394, §§ 1, 2; Ga. L. 1993, p. 1081, § 1; Ga. L. 1995, p. 10, § 53.

Law reviews. - For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For annual survey of wills, trusts, and administration of estates law, see 41 Mercer L. Rev. 411 (1989). For note, ‘‘Determining Eligibility for Year’s Support in Georgia: The Tension Between Status and Dependence Requirements,’’ see 22 Ga. L. Rev. 1167 (1988).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. T. 53, Ch. 5 are included in the annotations for this Code section. Former O.C.G.A. T. 53, Ch. 5 was not unconstitutional, since a 1979 amendment to this chapter removed gender classification for year’s support eligibility, and since the year’s support statute when first adopted was not violative of the Constitution under court interpretations of that

period. Adams v. Adams, 249 Ga. 477, 291 S.E.2d 518 (1982) (decided under former O.C.G.A. Ch. 5, T. 53). Applicability of Civil Practice Act. - O.C.G.A. § 9-11-55(a), a provision of the Civil Practice Act regarding the opening of default judgments, governs an application for year’s support and caveat filed in probate court. Greene v. Woodard, 198 Ga. App. 427, 401 S.E.2d 617 (1991) (decided under former O.C.G.A. Ch. 5, T. 53).

Notes of Decisions

Cited in 8 cases, 1985–2016 · leading case: Davis v. Parris, 710 S.E.2d 757 (Ga. 2011).

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Davis v. Parris, 710 S.E.2d 757 (Ga. 2011). · cites it 16× “§ 113-104, [2] precursor to what the parties cite as OCGA § 53-2-51). If a mutual will was jointly executed, both testators signed a single document and the document was probated upon each testator's death.”

Hodges v. Callaway, 621 S.E.2d 428 (Ga. 2005). · cites it 6× “Callaway contends that the will, although joint, was not mutual and did not preclude Mrs. Jones from making an inter vivos gift of the property to him.”

Bandy v. Henderson, 670 S.E.2d 792 (Ga. 2008). · cites it 6× “Further, nothing in Tommie’s will can be construed to be a statement that it was a mutual will with that of Joseph.”

Coker v. Mosley, 387 S.E.2d 135 (Ga. 1990). · cites it 2× “(a) The principal issue in this appeal is whether the wills executed by Roy and Alice Esther Holland, husband and wife, were “mutual wills” under the terms of OCGA § 53-2-51. That issue is answered by the plain dictate of the statute, which provides in part: (b) Except for…”

Long v. Waggoner, 558 S.E.2d 380 (Ga. 2002). · cites it 2× “8 OCGA § 53-2-51 (b) (1993). Because Virgil Long died in 1993, and any rights under the allegedly mutual will vested at that time, the version of the statute in place at that time controls our disposition of this issue.”

McPherson v. McPherson, 327 S.E.2d 204 (Ga. 1985). · cites it 2× “We thus hold that the trial court did not err in ruling this a joint will, rather than a joint and mutual will, under OCGA § 53-2-51 (b). 3. Appellants also challenge their dismissal from the caveat.”

Oravec v. Phillips, 785 S.E.2d 295 (Ga. 2016). · cites it 2× “” OCGA § 53-2-51 (1967 version). Thus, the earlier version of the Probate Code required an express contract or an express statement of intent as to the mutuality of a will.”

Smith v. Turner, 477 S.E.2d 663 (Ga. Ct. App. 1996). · cites it 4× “The central issue in this appeal is whether the wills executed by Marcus Smith and Inez Smith were mutual wills under OCGA § 53-2-51. The trial court determined they were not mutual wills and granted summary judgment to Turner.”

— 53-2-51(b) — 1 case

Davis v. Parris, 710 S.E.2d 757 (Ga. 2011). “§ 113-104, [2] precursor to what the parties cite as OCGA § 53-2-51). If a mutual will was jointly executed, both testators signed a single document and the document was probated upon each testator's death.”

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.