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2018 Georgia Code 53-3-6 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 53-3-6 Case Law from Google Scholar Amendments to OCGA 53-3-6

TITLE 53 WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Section 3. Year's Support, 53-3-1 through 53-3-20.

ARTICLE 5 ESCHEAT

53-3-6. Issuance of citation and publication of notice; mailing of petition to tax commissioner.

  1. As used in this Code section, the term "interested person" means the decedent's children, spouse, other heirs, beneficiaries, creditors, and any others having a property right in or claim against the estate of the decedent which may be affected by the year's support proceedings.
  2. Upon the filing of the petition, the probate court shall issue a citation and publish a notice once a week for four weeks, citing all persons concerned to show cause by a day certain why the petition for year's support should not be granted.
    1. If there is a personal representative of the decedent's estate, then, in addition to the citation and notice required by subsection (b) of this Code section, the probate court shall cause a copy of the citation to be sent by mail to the personal representative of the decedent's estate. The copy of the citation shall be mailed not less than 21 days prior to the date and time shown in the citation.
    2. If there is no personal representative of the decedent's estate, then, in addition to the citation and notice required by subsection (b) of this Code section, the petitioner or the attorney for the petitioner shall file with the probate court an affidavit, upon oath, showing the name, last known address, and age if less than age 18 of each interested person and stating that the petitioner or the attorney for the petitioner has listed all known interested persons and has made reasonable inquiry to ascertain the names, last known addresses, and ages of all interested persons. The probate court shall mail a copy of the citation to each interested person shown on the affidavit not less than 21 days prior to the date and time shown in the citation.
    3. If the sole personal representative of the decedent's estate and the petitioner or the guardian of the petitioner are the same person, then paragraph (2) of this subsection shall govern as if the decedent's estate had no personal representative.
  4. The probate court shall mail a copy of the petition within five days of its filing to the tax commissioner or tax collector of any county in this state in which real property proposed to be set apart is located.

(Code 1981, §53-3-6, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 14.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, the second enacted version of subsection (c) was redesignated as subsection (d).

Law reviews.

- For article discussing decisions involving the year's support provision of the Georgia Code, see 3 Ga. St. B.J. 427 (1967). For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982).

COMMENT

This section carries forward the provisions of former OCGA Sec. 53-5-8 that relate to the filing of the petition, the mailing of a copy of the petition to the tax commissioner, and the notice given to the personal representative of the estate and interested persons. Provisions relating to the actual award of year's support appear in Section 53-3-7.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, § 2573, former Civil Code 1895, § 3467, former Civil Code 1910, § 4043, former Code 1933, §§ 113-1005, 113-1005.1, 113-1005.2, and 113-1005.3, and former O.C.G.A. § 53-5-9 are included in the annotations for this Code section.

Year's support.

- In a probate matter, a trial court erred by dismissing an executor's objection to the setting aside of certain real property as a year's support in favor of an estate as the executor had filed an objection within 15 days of the default order amending the year's support order, pursuant to O.C.G.A. § 9-11-55(a), and by paying costs. The provisions of § 9-11-55(a) relating to the opening of default judgments as a matter of right within 15 days of default applied to a year's support proceedings in probate court. In re Estate of Ehlers, 289 Ga. App. 14, 656 S.E.2d 169 (2007).

Probate court erred by allowing the objections of a bank and a decedent's parents solely on the basis of adverse title and by denying a year's support to the widow when the widow failed to meet the resulting burden of proof because the probate court lacked the jurisdiction under Ga. Const. 1983, Art. VI, Sec. III, Para. I and O.C.G.A. § 15-9-30 to determine that the relevant money-market account and real property were not part of the estate; despite the jurisdictional limitation and the lack of an appropriate objection, the probate court proceeded to conduct a hearing as to the amount necessary for the widow's support, thereby inappropriately placing upon the widow a burden of proof that was contrary to O.C.G.A. § 53-3-7(a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. In re Mahmoodzadeh, 314 Ga. App. 383, 724 S.E.2d 797 (2012).

Due process requirements satisfied.

- After the executor of a decedent's will was given notice of a widow's application for year's support, due process requirements were satisfied. Ingram v. Ruff, 236 Ga. App. 309, 511 S.E.2d 549 (1999).

Absence of signatures.

- Conformed copy of a lost will was properly admitted into evidence, notwithstanding that the copy did not bear signatures of either the testator or the witnesses, especially as the attorney who prepared and witnessed the will testified that the copy was the same as the executed original. Smith v. Srinivasa, 269 Ga. 736, 506 S.E.2d 111 (1998).

Evidence held sufficient to rebut presumption of revocation.

- Presumption of revocation was properly found to have been rebutted since (1) the attorney who prepared the will kept in touch with the testator until shortly before the testator's death, and the testator never mentioned changing or revoking the testator's will, and (2) just a month before the testator's death, the testator affirmed to the testator's daughter that the testator wished certain property to be disposed of as stated in the will and never indicated any desire to revoke or change the testator's will. Smith v. Srinivasa, 269 Ga. 736, 506 S.E.2d 111 (1998).

Return by appraisers required within 30 days of appointment.

- Provision as to time within which appraisers may make their return is directory; and if they should fail to make their return within the statutory period, the ordinary (now probate judge) could compel them to act, or appoint new appraisers. Goss v. Greenaway, 70 Ga. 130 (1883) (decided under former Code 1882, § 2573); Whatley v. Watters, 136 Ga. 701, 71 S.E. 1103 (1911);(decided under former Civil Code 1910, § 4043).

After the ordinary (now probate judge) receives a belated return and cites interested parties, by publication as prescribed by law, to show cause why the return should not be approved and made the judgment of the court, and such return is duly approved, it is too late for a creditor to object that the return was not made within 30 days of the appointment of the appraisers. Goss v. Greenaway, 70 Ga. 130 (1883) (decided under former Code 1882, § 2573); Whatley v. Watters, 136 Ga. 701, 71 S.E. 1103 (1911);(decided under former Civil Code 1910, § 4043).

Widow's right to a year's support is not affected by the appraisers' dereliction of duty for which she is not responsible. Goss v. Greenaway, 70 Ga. 130 (1883) (decided under former Code 1882, § 2573); Whatley v. Watters, 136 Ga. 701, 71 S.E. 1103 (1911);(decided under former Civil Code 1910, § 4043).

Incomplete listing of interested persons.

- Widow's application for a year's support was not void merely because the list of interested persons may have been incomplete. Scott v. Grant, 227 Ga. App. 1, 487 S.E.2d 627 (1997) (decided under former O.C.G.A. § 53-5-8).

Service of notice of action.

- Filing an application for year's support without proper service does not toll the three-year limitation period of former O.C.G.A.53-5-2(d) for year's support proceedings. In re Estate of Reece, 243 Ga. App. 173, 532 S.E.2d 726 (2000) (decided under former O.C.G.A. § 53-5-8).

Cited in Mathews v. Rountree, 123 Ga. 327, 51 S.E. 423 (1905); Foster v. Turnbull, 126 Ga. 654, 55 S.E. 925 (1906); Winn v. Lunsford, 130 Ga. 436, 61 S.E. 9 (1908); Young v. Anderson, 19 Ga. App. 551, 91 S.E. 900 (1917); Beddingfield v. Old Nat'l Bank & Trust Co., 175 Ga. 172, 165 S.E. 61 (1932); Rooke v. Day, 46 Ga. App. 379, 167 S.E. 762 (1932); Shingler v. Furst, 52 Ga. App. 39, 182 S.E. 72 (1935); Smith v. Brogan, 207 Ga. 642, 63 S.E.2d 647 (1951); Sanders v. Fulton County, 111 Ga. App. 434, 142 S.E.2d 293 (1965); Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970); Strickland v. Trust Co., 230 Ga. 714, 198 S.E.2d 668 (1973); Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976); Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976); Sudderth v. Bailey, 239 Ga. 385, 236 S.E.2d 823 (1977); Richards v. Wadsworth, 230 Ga. App. 421, 496 S.E.2d 535 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 488 et seq., 717.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 472.

ALR.

- Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him, 50 A.L.R.2d 1268.

Cases Citing O.C.G.A. § 53-3-6

Total Results: 10  |  Sort by: Relevance  |  Newest First

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Clarke v. Cotton, 440 S.E.2d 165 (Ga. 1994).

Cited 34 times | Published | Supreme Court of Georgia | Feb 21, 1994 | 263 Ga. 861, 94 Fulton County D. Rep. 738

...Cox, supra, each of these defendants was entitled to separate consideration as to the propriety and amount of any punitive damages. [3] See, e.g., Imposition of resulting trusts, OCGA § 53-12-92 (c); Determining rights of survivorship, OCGA § 7-1-813; Substitution of a copy of a lost will, OCGA § 53-3-6; Jackson v....
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Westmoreland v. Tallent, 549 S.E.2d 113 (Ga. 2001).

Cited 12 times | Published | Supreme Court of Georgia | Jul 5, 2001 | 274 Ga. 172

...ed for probate. 1. Westmoreland contends that the will should not have been admitted to probate, arguing that testimony from all of the witnesses was required to prove due execution of the will, or proof that the witness was unavailable. Former OCGA § 53-3-6(a) (effective until January 1, 1998) addresses lost wills and provides that if a will is lost during the testator's lifetime, destroyed without the consent of the testator during his lifetime, or lost or destroyed subsequent to the death of...
...ides the procedure to be followed where the original will is lost but a copy is available." Horton v. Burch, 267 Ga. 1, 2, 471 S.E.2d 879 (1996). Westmoreland contends that the language "proved to be such by the subscribing witnesses" in former OCGA § 53-3-6(a) required Tallent to produce the second subscribing witness at trial or prove that the witness was unavailable, neither which she accomplished....
...392(2), 529 S.E.2d 889 (2000) (evidence established that witnesses were inaccessible); McBride v. Jones, 268 Ga. 869(1), 494 S.E.2d 319 (1998) (due execution may be proved even if all witnesses are shown to be unavailable). Tallent's failure to fulfill the testamentary formalities required by former OCGA § 53-3-6 does not demand reversal, however, as the testatrix executed a self-proving affidavit pursuant to former OCGA § 53-2-40.1....
...tion, subject to rebuttal, that the requirements of execution and attestation were met. [Footnote omitted.] Mary F. Radford, Redfearn Wills and Administration in Georgia (6th ed.2000) § 5-8, p. 96. Whether a lost or destroyed will under former OCGA § 53-3-6(a) may be validated by uncontraverted evidence *116 from the notary public who notarized the affidavit regarding the execution by the testator of a self-proving affidavit is one of first impression in this State....
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Murchison v. Smith, 508 S.E.2d 641 (Ga. 1998).

Cited 8 times | Published | Supreme Court of Georgia | Oct 26, 1998 | 270 Ga. 169

...of duress or undue influence. The jury had to determine whether the evidence showed that Ms. Smith had effected an express revocation of her January will. See former OCGA §§ 53-2-72, 53-2-74. It also had to consider the application of former OCGA § 53-3-6, which provides that if a will is lost during the testator's lifetime, destroyed without the consent of the testator during the testator's lifetime, or lost or destroyed subsequent to the death of the testator, a copy of the will, clearly p...
...vidence of Ms. Smith's destruction of the original of that will also gave rise to a strong presumption of a valid express revocation, which presumption Appellee could rebut only by producing clear and convincing evidence to the contrary. Former OCGA § 53-3-6(b); Scott v....
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Horton v. Burch, 471 S.E.2d 879 (Ga. 1996).

Cited 8 times | Published | Supreme Court of Georgia | Jul 1, 1996 | 267 Ga. 1, 96 Fulton County D. Rep. 2464

...We granted Horton's application for interlocutory review of the trial court's order. Because we find that the trial court failed to recognize that the "condition of the will" in this case was that of a lost will so that a presumption of revocation arose pursuant to the express terms of OCGA § 53-3-6, we reverse. OCGA § 53-2-74 addresses express revocation and provides that a will may be expressly revoked "by any destruction or obliteration of an original will or a duplicate thereof." OCGA § 53-3-6 addresses lost wills and provides that if a will is lost during the testator's lifetime, destroyed without the consent of the testator during his lifetime, or lost or destroyed subsequent to the death of the testator, a copy of the will, cl...
...Both statutes address problems that arise when there is an executed original will and one or more copies thereof: OCGA § 53-2-74 provides the procedure to be followed where there is a material alteration to either the original will or a copy; OCGA § 53-3-6 provides the procedure to be followed where the original will is lost but a copy is available....
...ve any interpretation of King v. Bennett that would draw such a distinction. [3] Unlike the situation in King v. Bennett, supra, the original will executed by Ms. Horton has not been located. It is lost. [4] Therefore, reference must be made to OCGA § 53-3-6, which applies whenever a will is lost during the testator's lifetime, id. at (a)(1); [5] destroyed without the consent of the testator during the testator's lifetime, id. at (a)(2); or lost or destroyed subsequent to the death of the testator. Id. at (a)(3). OCGA § 53-3-6 allows the admission to probate of copies of wills clearly proven to be such by the evidence, id....
...at (a), subject in every case to the presumption in subsection (b) that the will was revoked by the testator. That presumption of revocation must be rebutted with clear and convincing proof. Id. As is consistent with OCGA § 53-2-74, the propounder of the will under OCGA § 53-3-6 carries the burden of overcoming the presumption that the original will was revoked. Lyons v. Bloodworth, 199 Ga. 44, 48(1), 33 S.E.2d 314 (1945); see also Hill v. Cochran, 258 Ga. 473, 474(1), 371 S.E.2d 94 (1988). Because a presumption arises pursuant to the express language in OCGA § 53-3-6 that the will was revoked by the testator in those instances where, as here, the condition of a will cannot be ascertained because the will is uncontrovertedly lost, it follows that the trial court erred as a matter of law when it held that...
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McBride v. Jones, 494 S.E.2d 319 (Ga. 1998).

Cited 7 times | Published | Supreme Court of Georgia | Jan 12, 1998 | 268 Ga. 869, 98 Fulton County D. Rep. 238

...If a will is lost during the lifetime of the testatrix, or subsequent to her death, "a copy of the will, clearly proved to be such by the subscribing witnesses and other evidence, may be admitted to probate and record in lieu of the original." OCGA § 53-3-6(a)....
...py of the original. 2. When a copy of a will is offered for probate, there exists a presumption that the will was revoked by the testatrix, and the burden is on the propounder of the will to rebut that presumption by clear and convincing proof. OCGA § 53-3-6(b); Horton v....
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Hill v. Cochran, 371 S.E.2d 94 (Ga. 1988).

Cited 7 times | Published | Supreme Court of Georgia | Jul 14, 1988 | 258 Ga. 473

...However, under OCGA § 53-2-94, parol evidence is admissible as to the testator's intent at the time of execution, not subsequently. Mrs. Hill contends that the evidence did not overcome the presumption of law of revocation arising by the fact that the will could not be found after the death of the testator. OCGA § 53-3-6....
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Smith v. Srinivasa, 506 S.E.2d 111 (Ga. 1998).

Cited 5 times | Published | Supreme Court of Georgia | Sep 14, 1998 | 269 Ga. 736, 98 Fulton County D. Rep. 3101, 98 FCDR 3101

...Donovan, Hiram, for Johnny Dale Smith. William Thomas Cable Jr., Vinson, Talley, Richardson & Cable, P.C., Dallas, for Krishna Srinivasa. HINES, Justice. This is an appeal from the judgment entered on a jury verdict in a will contest involving the application of former OCGA § 53-3-6....
...The jury returned a verdict for Srinivasa, finding that the 1989 will was the last will and testament of Ms. Smith. 1. Smith fails in the contention that because the copy of the 1989 will does not bear signatures of either the testatrix or the witnesses it is not the sort contemplated by OCGA § 53-3-6....
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Warner v. Reynolds, 546 S.E.2d 520 (Ga. 2001).

Cited 3 times | Published | Supreme Court of Georgia | May 7, 2001 | 273 Ga. 802

...718, 719, 470 S.E.2d 657 (1996); McIntyre v. McIntyre, 120 Ga. 67, 71, 47 S.E. 501 (1904). The doctrine of dependent relative revocation is one of presumed intent, and it remains the intent of the testatrix that is the crucial issue. Havird, supra; McIntyre, supra. Former OCGA § 53-3-6(a) and (b) specified that when a will was lost, there arose a presumption of revocation that could be rebutted by clear and convincing evidence....
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Woods v. Giedd, 257 Ga. 152 (Ga. 1987).

Cited 1 times | Published | Supreme Court of Georgia | Jun 4, 1987 | 356 S.E.2d 211

Clarke, Presiding Justice. The issues in this case are twofold: 1) whether a copy of a will lost before the death of the testator may be admitted to probate under OCGA § 53-3-6; and 2) whether the evidence presented by appellees was sufficient to withstand a motion for summary judgment by appellant. OCGA § 53-3-6 provides: “If a will is destroyed without the consent of the testator or is lost or destroyed subsequent to the death of the testator, a copy of the will ....
...The propounders, appellees here, appealed to the Superior Court of Pulaski County. Mrs. Woods, the appellant here, moved for summary judgment. The trial court denied the motion, and we granted appellant’s application for an interlocutory appeal. 1. We first consider the construction of OCGA § 53-3-6....
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Hurst v. Gray, 251 Ga. 856 (Ga. 1984).

Published | Supreme Court of Georgia | Jan 5, 1984 | 310 S.E.2d 524

...miss both of the appellants’ appeals to that court. The superior court denied the motion to dismiss the appeal on the petition for no administration *857necessary, recognizing that a copy of a will may be probated under certain circumstances (OCGA § 53-3-6 (Code Ann....