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2018 Georgia Code 53-4-2 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 53-4-2 Case Law from Google Scholar Amendments to OCGA 53-4-2

TITLE 53 WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Section 4. Wills, 53-4-1 through 53-4-75.

ARTICLE 1 GENERAL PROVISIONS

53-4-2. When will takes effect.

A will shall take effect instantly upon the death of the testator however long probate may be postponed.

(Code 1981, §53-4-2, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For comment on Jenkins v. United States, 296 F. Supp. 203 (M.D. Ga. 1968), see 3 Ga. L. Rev. 766 (1969).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-105, are included in the annotations for this Code section.

Application of pre-1998 probate code.

- Trial court did not err when the court applied the law in place before the 1998 probate code was adopted to determine whether a husband and wife had a contract not to revoke their joint and mutual will because the issue was not the propriety of the devises in the will but whether the husband and wife had a contract not to revoke the will; the 1998 probate code only applies to contracts entered into on or after January 1, 1998, so it would not apply to any contract allegedly made in 1980. Davis v. Parris, 289 Ga. 201, 710 S.E.2d 757 (2011).

Statute did not mean that an unprobated will is operative.

- Only after a will is probated will rights in property be fixed retrospectively with reference to the law and factual circumstances existing at the time of the testator's death. Woodall v. Pharr, 119 Ga. App. 692, 168 S.E.2d 645 (1969), aff'd, 226 Ga. 1, 172 S.E.2d 404 (1970) (decided under former Code 1933, § 113-105).

It is necessary to probate a will before the will can be recognized as an instrument affecting rights in property. Woodall v. Pharr, 119 Ga. App. 692, 168 S.E.2d 645 (1969), aff'd, 226 Ga. 1, 172 S.E.2d 404 (1970) (decided under former Code 1933, § 113-105).

Will is to be taken as speaking from the time of the death of the testator. Moore v. Segars, 192 Ga. 190, 14 S.E.2d 752 (1941) (decided under former Code 1933, § 113-105).

To take effect a will not only must be a validly executed instrument disposing of the testator's property at the testator's death, but it must remain so right up to its effective date, the testator's death. Lawson v. Hurt, 217 Ga. 827, 125 S.E.2d 480 (1962) (decided under former Code 1933, § 113-105).

If futurity is annexed to the substance of the gift, the vesting is suspended; but if it relates to the time of payment only, the title vests instantly upon the death of the testator. Lassiter v. Bank of Dawson, 191 Ga. 208, 11 S.E.2d 910 (1940) (decided under former Code 1933, § 113-105).

Cited in Parks v. Gresham, 185 Ga. 470, 195 S.E. 728 (1938); Fitzgerald v. Morgan, 193 Ga. 802, 20 S.E.2d 73 (1942); Nixon v. Nixon, 194 Ga. 301, 21 S.E.2d 702 (1942); Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954); Jenkins v. United States, 428 F.2d 538 (5th Cir. 1970); Mitchell v. Mitchell, 279 Ga. 282, 612 S.E.2d 274 (2005).

RESEARCH REFERENCES

ALR.

- Governing law of will as affected by change of domicil after its execution, 57 A.L.R. 229.

Time as of which members of class described as testator's "heirs," "next of kin," "relations," etc., to whom a future gift is made, are to be ascertained, 169 A.L.R. 207.

Legal status of posthumously conceived child of decedent, 17 A.L.R.6th 593.

Cases Citing O.C.G.A. § 53-4-2

Total Results: 12  |  Sort by: Relevance  |  Newest First

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Haley v. Regions Bank, 586 S.E.2d 633 (Ga. 2003).

Cited 31 times | Published | Supreme Court of Georgia | Sep 15, 2003 | 277 Ga. 85, 2003 Fulton County D. Rep. 2726

...42, 43, 252 S.E.2d 468 (1979). Such law governs even if it was enacted subsequent to the execution of the will. "The will is to be taken as speaking from the time of the death of the [testator]. [Cit.]" Moore v. Segars, 192 Ga. 190, 197(3), 14 S.E.2d 752 (1941). See also OCGA § 53-4-2....
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Tolbert v. Murrell, 322 S.E.2d 487 (Ga. 1984).

Cited 29 times | Published | Supreme Court of Georgia | Oct 31, 1984 | 253 Ga. 566

...er OCGA § 51-4-2 (d) where there are five or more children (or representatives of deceased children), the wife receives one-fifth of the recovery and the children's shares are reduced. Vickers v. Vickers, 210 Ga. 488, 492 (80 SE2d 817) (1954); OCGA § 53-4-2 (2)....
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McLendon v. Priest, 376 S.E.2d 679 (Ga. 1989).

Cited 18 times | Published | Supreme Court of Georgia | Mar 8, 1989 | 259 Ga. 59

...In view of this circumstance and in order to avoid holding the agreement meaningless and thereby defeat the purpose of the parties, we find it reasonable to construe the word "families" to *61 mean those relations who would take under the laws of descent and distribution at the time of Mattie's death. See OCGA § 53-4-2....
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Sieg v. Sieg, 455 S.E.2d 830 (Ga. 1995).

Cited 12 times | Published | Supreme Court of Georgia | Apr 10, 1995 | 265 Ga. 384

...563 (1849), defendant contends the prenuptial agreement (which plaintiffs attached to their complaint) constituted only "marriage articles," see *832 OCGA § 19-3-62(a), to which plaintiffs were not parties and thus because plaintiffs are merely collateral relatives, see OCGA § 53-4-2(1), they are not entitled to relief based on the agreement....
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Peters v. Hosp. Auth. of Elbert Cty., 458 S.E.2d 628 (Ga. 1995).

Cited 9 times | Published | Supreme Court of Georgia | Jun 29, 1995 | 265 Ga. 487, 95 Fulton County D. Rep. 2240

...In order for the stillborn to have a cause of action, "person," as used in OCGA § 51-1-9, must be construed to include the unborn. This we decline to do, *630 as we are reluctant to accord legal rights to the unborn without conditioning those rights upon live birth. See 43 C.J.S. 561, Infants, § 219; OCGA § 53-4-2(4) (a child born posthumously has a right of inheritance); Billingsley v....
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In Re Last Will & Testament of Lewis, 434 S.E.2d 472 (Ga. 1993).

Cited 6 times | Published | Supreme Court of Georgia | Sep 20, 1993 | 263 Ga. 349, 93 Fulton County D. Rep. 3388

...1 that the trial court did not err by ruling that the testatrix' intent was manifest within the body of the will itself, we need not address appellants' remaining enumeration that the trial court erred by refusing to rely on affidavits submitted by the parties. Judgment affirmed. All the Justices concur. NOTES [1] OCGA § 53-4-2 (5) provides: Brothers and sisters of the intestate shall stand in the second degree and shall inherit if there is no surviving spouse, child, or representative of a child .......
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Davis v. Parris, 710 S.E.2d 757 (Ga. 2011).

Cited 5 times | Published | Supreme Court of Georgia | May 16, 2011 | 289 Ga. 201, 2011 Fulton County D. Rep. 1503

...As a remedy, the trial court ordered that the 1980 will be specifically enforced by equity. 1. Appellant alleges the trial court erred when it determined that the 1998 probate code did not apply to the case. When construing the devises in a will, the law at the time of the testator's death is the law to be applied. OCGA § 53-4-2; Payne v....
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Colella v. Coutu, 603 S.E.2d 296 (Ga. 2004).

Cited 2 times | Published | Supreme Court of Georgia | Sep 27, 2004 | 278 Ga. 440, 2004 Fulton County D. Rep. 3128

...The general principle is that the law in effect at the time of the testator's death governs, even if it was enacted subsequent to the execution of the will. "The will is to be taken as speaking from the time of the death of the [testator]. [Cit.]" [Cit.]. See also OCGA § 53-4-2....
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McClinton v. Sullivan, 438 S.E.2d 71 (Ga. 1994).

Cited 2 times | Published | Supreme Court of Georgia | Jan 10, 1994 | 263 Ga. 711, 94 Fulton County D. Rep. 96

...However, because there was a divorce pending at the time of decedent's death, he was disqualified to act as administrator. McClinton argues that he should have then been appointed administrator under subsection (2) because he would be the next in line to inherit under OCGA § 53-4-2....
...s to disinherit him. However, the express language of disqualification found in subsection (1) does not change Sullivan's status as an heir. Therefore, since the decedent died without lineal descendants, Sullivan is the sole heir of her estate. OCGA § 53-4-2....
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Wilson v. James, 392 S.E.2d 5 (Ga. 1990).

Cited 1 times | Published | Supreme Court of Georgia | Jun 7, 1990 | 260 Ga. 234

...n and, under certain circumstances, illegitimate children, it has not so included stepchildren. OCGA §§ 19-18-14 (a) (2); 53-4-4. Further, stepchildren are distinguished from children in that the former do not share in intestate distribution. OCGA § 53-4-2....
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Mitchell v. Mitchell, 279 Ga. 282 (Ga. 2005).

Published | Supreme Court of Georgia | Apr 26, 2005 | 612 S.E.2d 274, 2005 Fulton County D. Rep. 1397

...vocation results from the execution of a subsequent inconsistent will that does not by its terms expressly revoke the previous will. An implied revocation takes effect only when the subsequent inconsistent will becomes effective.” Pursuant to OCGA § 53-4-2,1 the 2001 will became effective upon the death of the testator, regardless of any postponement of probate....
...Therefore, we affirm the trial court’s finding that the 2001 will impliedly revoked the 1991 will in its entirety. Judgment affirmed. All the Justices concur. *284Decided April 26, 2005. Bret E. Rudeseal, for appellants. Frank H. Jones, for appellees. OCGA § 53-4-2 provides: “A will shall take effect instantly upon the death of the testator however long probate may be postponed.”
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Chester v. Cannon, 258 Ga. 486 (Ga. 1988).

Published | Supreme Court of Georgia | Sep 7, 1988 | 371 S.E.2d 387

...not members of the class and take nothing under the deed. Judgment affirmed in part and reversed in part. All the Justices concur. Allen, Brown & Edenfield, Becky J. Dasher, for appellee. Mary Alma’s interest will pass by intestacy under OCGA § 53-4-2 (2) (Supp....